KS: Memperkenalkan barisan Peguambela dan Pendakwa Raya
YA: Kita ada 2 permohonan hari ini, kalau pihak-pihak tiada bantahan, kita dengar 2 sekali. Isu yang sama kan?
KS: Isu yang sama YA.
YA: So kita dengar sekali, ok? Setuju?
KS: Ya, YA.
KS: My Lord, there are two motions before your Lordship. First 197, the other is 204. There was an affidavit in reply to the application 197. I take your Lordship to Para 11 of the affidavit MH. Para 11 adverts to this.
“Selanjutnya saya mengatakan pemohon melalui peguambelanya S.N Nair memaklumkan kepada Sarjan Ahmad bin Abdullah pada 25 Mei 2011 dan kemudian disahkan sekali lagi pada 26 Mei 2011, yang saksi-saksi yang dinyatakan di bawah ini tidak diperlukan untuk ditemubual oleh pihak pemohon.”
Then it is followed by the name of 8 witnesses My Lord. There is no affidavit by Sarjan Ahmad. The affidavit is only by Encik Hanafiah. Clearly this part of the affidavit would be inadmissible. It has been said that when we look at the midst of the matter, we are asking for witnesses in 197, 5 witnesses that has been set out in the motion: 1) Haji Hasanuddin 2) Dato Mohd Rodwan, 3) Tan Sri Musa Hassan 4) YB Dato’ Seri Najib Razak 5) Datin Seri Rosmah Mansur.
And the second motion we have the list of 15 witnesses we wish to produce in court. Second, we wish to be given the right to interview them. The names appear in the list of witnesses offered to us. Below the subject, in the Criminal Procedure Code or elsewhere, with the regard to offering of the witnesses at the close of the case of the prosecution. This has been a practice for a long time, and a practice which is taken for the significance of the law.
I take your Lordship to tab number 8, first case in 1932, the case of C. Sanmugam. I take you to what is the relevance and significance issue there. It is the judgment of J. Whiteley about the contention of the Solicitor General. We go on to what the judge had said.
YA: Hold on. Page 75, which para?
KS: The right hand column, below there. I’ve highlighted that.
“In a trial by the Jury the prosecuting officer is not bound to call as a witness for the crown or tender for cross-examination a witness who gave evidence in the preliminary inquiry whose evidence in his opinion is unnecessary, hostile or not believed. But such witness must be in attendance. If the accused or his counsel wishes to have such witness called not called by the Crown, then the witness becomes his witness and the prosecuting officer will have the right of cross-examination.”
That case adverted to trial by jury and the position in matter involved in the inquiry.
I take you to what had decided in the case of Teh Lee Tong v Rex [1956] 22 MLJ, tab 7 of the list. This is important.
In this case the learned Judge considered the question whether it is incumbent on the prosecution in a summary trial to call as witnesses all persons from whom statements have been taken. He summarised the position as follows:
(1) All witnesses from whom statements have been taken should be brought to the Court by the prosecution, except those whose evidence will clearly and obviously throw no light on the case; any witness not so brought to Court must be made available to the accused, should he desire to call him.
(2) Having brought the witnesses to Court the prosecuting officer is not bound to call or to offer for cross-examination a witness whose evidence is in his opinion unnecessary or is obviously hostile.
(3) The existence of witnesses brought to Court but not called or offered for cross-examination under (2) above must be brought to the attention of the Court so that they are available to be called by the defence, or by the Court should the Court consider this necessary.
So what is important My Lord is the first paragraph; it should be brought to the court by the prosecution. None of these witnesses has been called to the court. Then it arises what happened when the witnesses is offered to the defence.
I take you to tab 9, the case of Wong Kue v Public Prosecutor [1967] 2MLJ 97:
“The defence has every right to interview police witnesses offered to the defence and the defence should be given a reasonable time for this purpose. A period of 15 minutes to interview six witnesses as in this case, is certainly not reasonable especially when a request for more time was made at the end of the period. Failure to give a reasonable time for the defence to interview these witnesses amounts to a gross injustice.”
It is our submission that none of these witnesses has been brought to court for the purpose of being offered to the defence. What we have now is the affidavit filed by Encik Hanafiah and that is to the effect that these witnesses are not compelled to the court, but only compelled to do so upon being subpoena.
I take you, with regard to the second exhibit, in the application of DSAI, application 197. That is a letter from the prosecuting officer, one of the Investigating Officer in this case, dated 18th of July 2011. It set out in Para 3, 5 witnesses who were in fact made available. It is in reply to our contention that these witnesses be interviewed to the court. Be that as it may, there was an understanding in chambers, in fact that was accepted by the prosecution that they will be brought to court. There is a situation perhaps it is not a protocol yet, but subsequently, they were for the purpose of 5 witnesses accepted for the purpose of being interviewed brought to court. And that we have here, in the letter itself, that some of the witnesses are not prepared for the purpose of being interviewed. In particular I will take you to para 6:
“Seterusnya saksi-saksi berikut tidak mahu ditemubual tetapi akan hadir ke Mahkamah jika disubpoena”.
In another words, some of the witnesses are refused to come to court pursuant to the understanding that they will be available to be interviewed here. For the witnesses to say now after they have been offered, that they are being subpoena, in fact in our view, are amounts to contempt of court. They have been offered to the defence, and the defence had been accepted them for the purpose of being interviewed, and their refusal would amounts to contempt.
The assertion that they must be subpoena, and that was the central [] in the reply by my learned friend to subpoena this witness. Some of them had indicated that they don’t want to come. That is the difference if the witnesses being subpoena, than the witnesses have been offered to the defence. When it comes to subpoena, I take your Lordship to the normal format of it in the Criminal Procedure Code that is in the Form 31. The second part of it, my Lord. [Read]. The word ‘testify’ would imply without the right to be interviewed, that not be include the right to be interview the witness. The rationale in offering witnesses to the defence, a witness from whom the statement has been taken, is to ensure that the witnesses are in the court for the purpose of the interview. They can’t say they don’t want to be interviewed. They can’t deny that position. And this has been done all the time My Lord.
And this is the procedure that, as I said earlier as the force of law, DSAI is entitled to a fair trial, and in the report is the case of Lee Kwan Who v PP [2009] 5 MLJ 301. I take your Lordship to page 303.
“The expression law in Art 5(1) of the Constitution included written law and the common law of England, i.e. the rule of law and all its integral components and in both its procedural and substantive dimensions. Thus it is settled law that the rule of law has both procedural and substantive dimensions”.
It is wrong for the Prime Minister to insist him to be subpoena, together with the other 4 witnesses who require the subpoena before the main trial. And for the other witnesses to say that they don’t want to be interviewed. They first must be interviewed. The must come for the purpose of being interviewed. They can’t by way of affidavit express that intention. They have to face defence counsel for the purpose of being interviewed. They can decline to answer question. They can incline []. But the defence couldn’t be denied the right had been denied the right, the right to these witnesses to be produced for the purpose of interviewed.
And this particularly important My Lord because all the witnesses from whom the statement is taken. The law is very clear. They must under the law be brought to court. The defence has every right to interview them, based on the two authorities I cited. The position is as simple as that. It has been done centuries ago since British had landed in Penang. I can’t see the difficulties why the Prime Minister has been so stubborn with another three witnesses who want to be subpoena, and the rest who don’t want to come, and also the one who insisting that he wants to come only with his lawyer: Encik Hasanuddin. We have no objection if he wants to come with his lawyer. Fair enough, he can come. But he must come. He cannot take shelter in the affidavit sworn. It is a very dangerous precedent set by your Lordship if your Lordship not allowing our application this time. This is not a threat but a gentle reminder to your Lordship of the consequences that should fall in the system. As far as this is concern, the precedent set put by your Lordship will bind them. And such situation ought not and cannot be allow to come about. Your Lordship duty is to hold the law. A law which has been there all the time. The law in which has been implemented in this court.
It would not be any departure from the law. Any departure from it would be amount to unconstitutional conduct. What is important is this my Lord, the alibi witnesses would come to court at any time, in fact even on the day of the hearing itself to give the evidence. And then the introduction of Section 402A of Criminal Procedure Code. This is now an opportunity for the list of alibi witnesses to be given to the prosecution, if the defence is intended to use alibi as their defence.
The rationale was this, for the prosecution to verify the truth of what the alibi witnesses are going to say i.e. being interviewed. And that interviewed is as result of Sec 112 of Criminal Procedure Code. 112 provides for a witness to say the truth, unless it came under the proviso. Otherwise, what had been stated is the truth. If the argument of opportunity to interview, in our case, alibi witnesses, we have opportunity to know from them what they have told the police in the 112 statement. And the alibi must be investigates is a trite law. I take you to the case of Lee Kwan Woh. It is at page 316 para 31 to the effect that the police must investigate the alibi.
How we will know what that they have said and we have the right to know from the witnesses, in the course of the investigation on what did you said in your statement to the police? So it must put in the perspective on whether or not to call the witness in the course of the defence. Can we be denied the opportunity to know that? Or from other aspect to know from this witnesses if they have been threatened by the police for the course of verification of the alibi. Can we be denied this? It is not the simple thing by saying that you subpoena the witnesses. And in this case, the alibi witnesses were offered by the prosecution, which ordinarily they need not be. What the police do is take the 112 statement and in the event of they getting evidence, and if they get something otherwise lose the 112 statement for the purpose of impeaching them.
YA: But in this case they had offered?
KS: In this case they had converted to prosecution witnesses and then offered to us. I don’t know why my learned friend is so []. What the intention is, I don’t know. That is not the point. We want [] which appears to be lacking in this case. So the position is as simple as that My Lord. I can’t understand why we are refused something which is so trite and simple. That is it.
YA: Kalau takde dah, I’ll hear from the prosecution.
KS: That is it all, My Lord. That is what it is.
YA: Ok, prosecution.
MY: YA, I would conceit, number 1: that the defence has the right to interview the witnesses. Number 2: that at the close of the prosecution case, the prosecution need to offer or has to be made available from whom the statement is recorded, including the alibi witnesses. Whether or not those phrases ‘to offer and be made available’ can be translated to have them produce physically or does it mean that it is an imply undertaking by the prosecution the case that you need to call those witnesses offered or made available as defence witnesses, then it would be the prosecution’s obligation to have subpoena applied and issued and serve on those witnesses whom they want to call as witnesses.
My lord, [] said, foundation of justice is good faith. Now where is the good faith in this application? First of all, most of the witnesses, my learned friend referred to para 11 Mohd Hanafiah’s affidavit, but what I want to say is this, there was a letter written by the IO to the defence counsel and it was exhibited in their own application as ‘DSAI 2’, which was copied to us.
If I may refer you to para 4 of this letter which was referred to and annexed to the affidavit of DSAI. It says that he following witnesses A to H and later on, most of the names were mentioned in the second application, it was the defence who want to [] with their interview. And then with regard to the PM and wife, Tan Sri Musa and Rodhwan, it is Encik Hanafiah’s reply where it stated that they couldn’t have anything material to testify for the purpose of this trial, with regard to the particular charge made against DSAI. If I may refer to paragraph 21 in enclosure 4 of the first Usul, if I may read as to what Hanafiah’s says:
“Selanjutnya saya menyatakan dakwaan pihak pemohon, yang mengatakan pemohon telah dinafikan peluang untuk perbicaraan yang adil jika saksi-saksi yang dirujuk di perenggan-perenggan 7 dan 8 Affidavit Pemohon tidak diwajibkan hadir untuk ditemubual oleh pihak pemohon tidak mempunyai asas kerana pihak pemohon sendiri telah mengatakan keterangan-keterangan keempat-empat saksi yang dinyatakan dalam perenggan 7 Affidavit Pemohon tidak relevan, memudaratkan dan tidak boleh diterima sebagai keterangan. Kenyataan saya ini disokong oleh penghujahan pihak pemohon sendiri yang mana saya lampirkan sebagai eksibit dan ditanda ‘MHZ-1’ di mana:
21.1 pihak pemohon telah berhujah bahawa semua keterangan SP1 berhubung pengaduan yang dibuatnya kepada Perdana Menteri Dato Seri Najib Tun Razak pada 24 Jun 2008 antara jam 8.00-8.30 pm di kediamannya di Taman Duta tidak boleh diterima masuk;

21.3 pihak pemohon telah berhujah menggesa Mahkamah mengenepikan keterangan berhubung perbualan telefon antara SP1 dengan Tan Sri Musa bin Hassan atas alasan sama.”
Obviously the evidence with relation to the incident similar but past incident and my learned friend had after having all those evidence being adduced by complainant admitted at the close of the prosecution’s case that all these witnesses highly prejudicial, and not relevant to the charge and therefore not admissible. Now, the law said this. Form 31 talks about a witness who have been subpoena, who can give material evidences. The defence themselves with regard to those witnesses, saying that they are highly irrelevant and prejudicial, and it referred to something which is not covered under the charge. It is not something which is referred to the incident happened on 26th.
Anything other than those incident would be highly prejudicial, we agreed. So why now you want to interviewed them, because you said that what the complainant told Najib, Musa and Rodwan are inadmissible, but now you want to call them. Because those are the only area that Saiful was cross examined with regard to the role of Najib, Musa and Rodwan.
Now with regard to those witnesses mentioned in second application. YA, with regard to the second application where 10 witnesses were mentioned, most of the names mentioned in MHZ-3 in their own notice of alibi. So when the defence put up the notice of alibi, for the police interview them to verify what is the material evidence that those witnesses could give. We give the notice of alibi to say that we weren’t there, but we were alleged to be where the offence took place. And these are the witnesses who can testify to them. Obviously they knew before hand but they wouldn’t want to submit those witnesses for the police to be interviewed. They are their witnesses. So what is there to interviewed? Because in this list, we have the name of the bodyguard and all those people who attended the meeting on the date of incident.
And the two maids of En. Hasanudin, at no time of the close of the prosecution case that we made available in the 71 witnesses until this application on the 1st of August 2011 the defence has never indicated they want to interview this two witnesses including Abdullah Sani bin Said.

So where is the good faith? Only two or three days ago. It was never indicated to us that they want to interview these people. And now they are saying “I have the right”. Yes, you have the right.

YA, before I go to the case law with regard to your right to interview may I just refer to the authority that my learned friend has referred. The first case, case no.8 is Shanmugam. The relevant paragraph start from the right hand column from the second paragraph until the last paragraph. What this case says is this, if you have called the witnesses during preliminary enquiry then you must made them available by producing them in the court whether called or not. You must produce them in court.

It said,
“…by a trial by jury, the prosecuting officer is not bound to call as a witness for the Crown or tender for cross-examination a witness who gave evidence in the preliminary enquiry whose evidence in his opinion is unnecessary, hostile or not believe but such witness must be in attendance.”

So it refers to witnesses who had their deposition recorded in the permittal proceeding.

In the case of Teh Lee Tong v. Rex [1956] 22 MLJ 94, my learned friend referred to this case as authority to say that we must produce. Can I start with the first sentence, the headnotes?

“The fact that a witness is really a defence witness is a sufficient reason for not tendering him for cross-examination.”

What all the case law seems to say is this, at the end of the day you must tender this people for cross-examination and for that purpose these people must be produced in court. So it says if those people are clearly such as alibi witnesses then we have no obligation to have them in court.

“In this case the learned Judge considered the question whether it is incumbent on the prosecution in a summary trial to call as witnesses all persons from whom statements have been taken. He summarised the position as follows:
(1) All witnesses from whom statement have been taken should be brought to the Court by the prosecution, except those whose evidence will clearly and obviously throw no light on the case; any witness not so brought to Court must be made available to the accused, should he desire to call him.”

Those people who we didn’t bring we must bring. In our case we brought all witnesses whom we wanted to call and those whom we didn’t bring, make them available. This is exactly what we did. We make them available, we give the list of witnesses, please indicate to us whom you want and we will bring them. But the case law seems to suggest we made available this people for the purpose of examination that means to be called as witnesses and not for the interview.

If I may refer your Lordship to our bundle, the case of Khoon Chye Hin v PP [1961] 27 MLJ 105. If I invite your Lordship to page 109, para B on the left,

“It is, of course, well settled that in a criminal case prosecuting counsel, provided there is no wrong motive, has a discretion as to whether or not to call any particular witness and in particular has a discretion not to call in support of his case a witness whom he does not believe to be a witness of truth.

In the case of Reg v Woodhead, Alderson B. referred to:—
“The rule which the Judges have lately laid down, that a prosecutor is not bound to call witnesses merely because their names are on the back of the indictment.”

He went on to say:—
“The witnesses, however, should be here, because the prisoner might otherwise be misled; he might, from their names being on the bill, have relied on your bringing them here, and have neglected to bring them himself. You ought, therefore, to have them in Court, but they are to be called by the party who wants their evidence.”

Again, in the case of Reg v Cassidy, Parke B. said that he considered the correct principle was:—
“That the counsel for the prosecution should call what witnesses he thought proper, and that, by having had certain witnesses examined before the grand jury whose names were on the back of the indictment, he only impliedly undertook to have them in Court for the prisoner to examine them, as his witnesses.””

Again, there is this kind of committal proceeding and those witnesses whom you called already before the grand jury you should produce in court. But in our case there is no such grand jury, no preliminary enquiry. And what would apply will be the second phase what my learned friend had said, the case of Teh Li Tong which said those that I did not bring I just need to make available if the defence desire to call. That’s all.

And reference is also made to the case of Adel Muhamamed El Dabbah, just below the case I read just now. And what the case said is we made available people who we think can give material evidence. In fact the word ‘material evidence’ appeared in the form.

YA, we know in this case that the witness mentioned about other incidents. The investigation was on all those incidents other than covered by the charge. But for the purpose of this case, for this charge which the AG decided to charge we did not see how other witnesses are relevant.

In fact the defence would know because the charge made reference to a particular place, particular time. They would have known whether or not he was there or was not there. And here in this case he was sure he wasn’t in that particular unit and he had submitted as exhibited in “MHZ-3” the list of witnesses of alibi to support his defence that he wasn’t in the unit. Very specific defence. Of course other than the fact if he can rebut the evidence of the chemist and the forensic doctors.

With regard to whether or not he has the right to interview, the case of Husdi v PP [1979] 2 MLJ 304 and Horace Henry Bryant v Victor Richard Dickson [1946] CCA 146 referred to in this particular case of PP v Ramli Bin Yusuff Criminal Revision No. K 43-08-2008 (tab 6) which is the latest case to discuss the right to interview.

This is a judgment by J Datuk Clement Skinner (as he then was). So what he said ultimately is this, at page 15 after having discuss the cases, S.112, the right to silence, Husdi and Bryant and Dickson,

“In the result, for the reasons given above I find that the accused’s right to interview prosecution witnesses only arises when the prosecution has waived the privilege over the witness statements of such witness and the witness agrees to be so interviewed.”

So if YA is to read the case, what happened in this case was the list of witnesses was supplied earlier even before the commencement of the trial. Now the defence wants to interview the witnesses. So they are saying, “Look if I were to allow you to interview the witnesses it is as good as nullifying the decision in Husdi which said 112 statement is privilege.” Because it is as good as giving you the 112.

So to reconcile with Husdi, your right will only arise when I no longer want to call this person or as in the case of Bryant v. Dickson, the defence counsel wrote to the prosecuting counsel and asked whether or not they want to call a particular witness and the prosecution said : No, we are not going to call, we have no objection for you to do that.

So when the prosecution has waived their right either as in the case of Bryant v. Dickson or at the close of the prosecution case with regard to witnesses whom they have not call then only your right….

YA: As to what? As to call the witnesses as witness? Kita dah close prosecution case so that mean you are not going to call this people anymore?

MY: Yes.

YA: So that was settled.

MY: That means we waived our right, we have no priority right over the witness then only your right to interview arises. But it said this right is subjected to those witnesses agreeing to be interviewed.

In fact in this particular case if you can look at page 2 of the judgment,

“The brief facts leading up to the making of the order are these.

The accused in the case is charged with an offence under the Anti-Corruption Act 1997. Prior to the commencement of the trial the defence wrote to the prosecution requesting for a list of the prosecution witnesses and also notifying the prosecution of their intention to interview witnesses who may be called by the prosecution.

The prosecution supplied the defence with a list of prosecution witnesses, but refused to allow their witnesses to be interviewed by the defence.

The defence has taken the stand that there are no proprietary rights in a witness and therefore the defence is entitled to interview the prosecution witnesses in preparing for its case, after having put the prosecution on notice of their intention to do so. The defence then wrote letters to certain prosecution witnesses with a view to interviewing them. Some of these witnesses have replied, agreeing to be interviewed whilst others did not respond.

The prosecution then intervened and advised or instructed these witnesses not to be interviewed by the defence as they had been subpoenaed to attend the trial.”

Of course in this case the learned judge talks about the right to silence. I quite disagree. To me it is not the right to silence; it’s the right to decline. I don’t have to decline because here we are talking about where is the law that can compel you to give statement.

Here the judge discusses Rule 34, which we have exhibited in our bundle. And Rule 34 is not the rule which confers the power for you to compel. And he discuss s.112. In fact in our bundle we exhibited s.111 where the police can actually give you notice, ask you to come, if you don’t want to come lodge a report to the Magistrate and have a warrant of arrest issued for you to be produced before. That’s compulsion. And there are many other laws with regard to the power of investigation where they have the power to compel. But, none given to counsel or to the court except by way of a subpoena. Even subpoena, if the law has provide certain particular method of securing attendance subpoena cannot be applied if that method after being employed failed to secure the attendance.

We have the cases. In fact just for the benefit of the court we have had in our bundle these cases of Raymond v. Tapson [1882] Chancery Division Vol.XXII 430 (tab 7) which talks about any party can apply for subpoena; Ismail v. Hasnul : Abdul Ghafar v. Hasnul [1968] 1 MLJ 108 (tab8) where the court talks about discretion to control the subpoena from being abused, if the witnesses cannot give relevant evidence the court can just set aside the subpoena; Rex v. Baines & Anor [1908-1909] Vol. XXV The Times Law Reports 79 (tab 9)where it talks the same thing and Exparte Simmons [1994] 1 KB 165 (tab 11) is one case where a particular method is employed provided by the law to secure attendance failing which you cannot apply for subpoena and you must use that method provided by the law.

So whether or not you can interview, all the case law seems to suggest you have the right but provided that they are prepared. And following the letter that the IO wrote, these people are not prepared. They said: if you want, have me subpoenaed. So all Mr. Karpal has to do is tell me I want Najib and I will apply subpoena from this court and then it’s up to Najib to set it aside, or Musa, or Rodwan for the matter.

But, you can’t asked the court and the court unfortunately is not vested with any authority to compel a witness to come here to be interviewed. There is no proviso. So your right is subjected to the other party’s right to decline to be interviewed.

So we agree there, En. Karpal has the right. But as I said this is not done in good faith, adding a few more names on the 1st of August to be interviewed when they had not at no time.

YA, our duty is when we close our case we make available the list of witnesses, you tell us whom you want and we will immediately supplied for subpoena. And then have them produce here. After that En Karpal can say : Look, before that I want to interview. But what he did was this – before I decide whom I want to call I want to interview first. []. And we give undertaking that we will make the necessary arrangement but we can’t just like the court cannot, we cannot compel these people.

But of course Dr. Khairul Annas came, Mumtaz came and few others came. 8 others, they choose not to come. Hasanudin refused to come. He said to talk to his counsel. Now I heard he said subpoena me. But these are Dato’ Seri Anwar Ibrahim’s friend, not the prosecution friend. All the while I thought En. Ibrahim Yaakob is En. Hasanuddin until I call him as a witness then he turns out to be Ibrahim Yaakob because the record refuses him having presence from the hearing where he shouldn’t be. Because I don’t know how this Hasanuddin looks like. And all these witnesses who attended the meeting are all known to Anwar, they are not our witness.

Like En. Karpal said, you ask us to record and we record. []. And the law said people from whom we recorded the statement we must made available, so we make available. You cannot say why are you doing this, what motive. There is no motive because the law says so. But making available and offering those witnesses to you does not equal to having them physically in court and that what the case no. 7 said – those whom I record statement I must bring and then call. If I don’t call and don’t bring to court I must made them available but it does not mean having the physically presence in court.

And the case of Abdullah Zawawi v PP [1985] 2 MLJ 16 said the practice of making available and offering these witnesses to the defence, witnesses from whom statement was recorded is a practice to prevent the invocation of s.114(g) Evidence Act.

And then we have a lose copy, a Court of Appeal case of Yusri bin Pialmi v PP [2010] 3 MLJ 445. Holding no.5 is the dissenting judgment of Kang Hwee Gee JCA. The principle is acceptable. It is a good law.

“It is always been the practice that the prosecution at the close of its case, offer or make available to the defence, witnesses whom it did not call to give evidence but those whose statements had been recorded in the course of police investigation. The practice has the force of procedural law to ensure that an accused is afforded all the means at his disposal to call any witness to testify on his behalf…”

And the case of Abdullah Zawawi, tab no.2 at page 18 of the report…

YA: Sorry Datuk. Apparently you use the word offering…

MY: Or make available. Offer or make available. Because in English cases they says tender, meaning you have there in the court and tender there.

Then Abdullah Zawawi case, at para I of the right hand column,

“The practice of making available a witness or witnesses from whom statements have been taken is to prevent the defence from commenting upon the honesty of the prosecution and thus invoking the often-quoted presumption of adverse inference under section 114 (g) of the Evidence Act.”

So, YA the closest you can come to this is what the case of Teh Lee Tong said: those whom we didn’t bring to court we must made available. So meaning making available does not mean making it physically presence. It is just as in this case of…

YA: So, bagi list saja cukup? Is that what you are saying?

MY: Yes. Because if you want just indicate to us…if your Lordship were to look at the case of Khoon Chye Hin and also the case of Adel Muhammed El Dabbah, they said maybe after having look at the name they may decide on whom they want to call so they make…

YA: So you make an offer by giving the list and they tell you I want this fellow, does that mean that you have to physically…

MY: Yes, then we will have to. The indication is…

YA: You have to?

MY: The indication must be you want them as witnesses. Because all the cases referred to call them as witness to be examined not for interview.

So the case on interview will be the case of PP v Ramli bin Yusuf. That’s the only case. In fact, the case of Bryant v. Dickson also the same, it said of course before that they went for interview. It said it will be good for you to interview before you call them. I mean it’s mentioned in the case of Bryant v. Dickson.

If I may read to your Lordship Bryant v. Dickson, tab 5, page 151 starting from the second paragraph.

“Another point taken is that Campbell was not called at the trial. It is said that it was the duty of the prosecution to have supplied the defence with a statement which Campbell had admittedly made to the prosecution. The prosecution, for reasons which one can well understand, did not call Campbell. Is there a duty in such circumstances on the prosecution to supply a copy of the statement which they have taken to the defence? In the opinion of the Court there is no such duty, nor has there ever been. In the first place, if they had supplied a copy of the statement of Campbell, that would not have enabled the defence to put the statement in. The statement which Campbell made could have become evidence only if he had been called as a witness. But it is said that it was the duty of the prosecution to put that statement at the disposal of the defence. In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence. That they did in this case, because when a letter was sent by the defence to the director of Public Prosecutions, the reply of the Director of Public Prosecutions showed quite clearly that the prosecution did not intend to call him, but he added: “There is no objection to your taking a statement from Campbell if you wish to do so”.”

This would appear as far as the court is concern tantamount to make it available. Because, “In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence …”. And this they did. How they do it is just by telling I’m not going to call, if you want to record the statement you can. And that as far as this case is concern is enough to making it available.

“There is no objection to your taking a statement from Campbell if you wish to do so”. That was said well before the trial. It was said after the close of the police court proceedings, when the defence knew that Campbell was not being called by the prosecution, and therefore could quite well themselves have gone to Campbell and taken a statement from him. Campbell was at the Court. Who brought him to the Court I do not know, nor is it material to inquire, but the defence could have called him if they had liked. No doubt Mr. Scott Henderseon would not have been so unwise as to call him without having a statement from him, but if the defence did not choose to take a statement and find out what he was prepared to say, that is not a matter with which the prosecution are concerned.”

That’s all, YA. Make available. That’s all. And that so if you wish to record the statement. As far as the prosecution, we have done that. And now his right to interview arises. What about the other party? The case of PP v Ramli Bin Yusuff said your right is subjected to the other person’s right to decline. And in this case before your Lordship those witnesses have declined to be interviewed which they have the right to do so, their constitutional right to do so.

My Lord, one more thing I want to add. My learned friend with regards to the alibi said this: these people have gone to see the police; the police have recorded their statement. I thought the purpose of interviewing a witness is to ascertain what he knows about the fact. Anwar should know how much information he has with regard to the case. But Mr. Karpal said I want to interview this witness to know what the witness told the police. I mean that cannot be the reason. The reason is to know how your evidence can help me, how much do you know whether it is relevant or not. In this case they already knew otherwise they wouldn’t identify this witness. But to say that I need to see this people to find out from them what they told the police is not the purpose of the interview. Like I said, there is no good faith. This is not [] says when he says that the foundation of justice is good faith and obviously in this particular application that is lacking.

I urged your Lordship to dismiss this application and to order the defence to indicate to the prosecution whoever they want to call so that we can make the necessary arrangement to help them in court when the trial resume next week. Much obliged.

KS: I would [] because my learned friend has updated me with the case of Yusri Bin Pailmi v PP. It is vey clear my Lord. If I could read it.

YA: Tab berapa tu?

KS: It is the lose copy that my learned friend referred to just now. It set out the law very very clearly my Lord. In fact, it is what your Lordship ought to be guided by. I read it.

“It is always been the practice that the prosecution at the close of its case, offer or make available to the defence, witnesses whom it did not call to give evidence but those whose statements had been recorded in the course of police investigation. The practice has the force of procedural law to ensure that an accused is afforded all the means at his disposal to call any witness to testify on his behalf. The prosecution’s failure in not offering or making them available under the circumstances has given rise to the question of whether the accused had been afforded a fair trial. ”

Here 71 witnesses were offered. We indicated we require 25. Undertstanding between the parties in the chamber in fact before your Lordship that the venue will be here, in court itself that they were to be interviewed and that understanding was implemented.

And to say the rest don’t want to come is not for the prosecution to say, it is for them to tell the defence that they don’t wish to come. It is for the defence to enquire from them what statement they have made in the course of the police investigation. It is not only the question of alibi witnesses here, its’ other witnesses. We can’t object to the [] of the evidence relating to the Prime Minister, it could be beyond that. My learned friend can’t impose us as to the evidence, which we want to elicit from the witnesses. And again we have again indicated in the second application that we need the two maids of En. Hasanuddin, the two Indonesian maids. They have not been indicated anywhere here my Lord that they don’t wish to be interviewed. Why are they not being made available? They are material witnesses.

I take you to the question of expense my Lord. Once the witness is offered to the defence then the prosecution bears the expenses my Lord for the attendance of that witness during the course of the trial. We want them to attend as witnesses, subpoena that then we would have bear the expenses.

YA: I think this one we already agreed if you want them as your witness just let them know and they will supply the subpoena. They will serve it, they will…

KS: Yeah, but we need them.

YA: And that’s for?

KS: Attendance in court.

YA: They agree to testify in court but you are asking them to be interviewed. Now, that’s the dispute sekarang ni.

KS: My Lord, automatically if we accept the witnesses it is the interview as of right. []

YA: So now you are asking them to produce the witnesses on their own expenses for purpose of being interviewed.

KS: Of course. That is the purpose of offering. []. And my learned friend refers to this case of tab 6, page15,

“In the result, for the reasons given above I find that to the accused’s right to interview prosecution witnesses only arises where the prosecution has waived the privilege over the witness statements of such witness and the witness agrees to be so interviewed.”

[]. Where is the waiver of the privilege? []. If a witness is offered it is automatically that we have the right to see the witness, talk to the witness. That’s the purpose of offering. It is done all the time. What a [] exercise being taken but something real. It is not for my learned friend to say that the witnesses are not material witnesses. It is only for the defence to decide whether they are material after we interview them. And facts that statements were taken from these witnesses shows that they would be material. Otherwise why take statement from witnesses? And on the [] why is the evidence is not material?

I can’t see we have to go in elaborate exercise to come to the conclusion that the witnesses is offered must be physically there to say what he wants and for us to decide in the right of what he say, even to the asking my Lord to what he said in 112 statement. He is our witness. Once offered, we accept. It’s like a contract my Lord, you offer we accept. It is as simple as that. In fact in all these years, in all these centuries, in England and in anywhere in the world that is what is done where the English law applies in court.

We urged your Lordship to very carefully consider this position that we have the right for their attendance in court and [] of the prosecution. We have the right to see them physically, we have the right to talk to them. They have the right then to refuse to become a witness. Of course we will not use someone who is against us. It may have been we have elicit some evidence from the witness.

It is not only the question here of alibi. The credibility of the complainant here could be [] through witnesses who had been offered. Attack his credibility. His visit to the PM’s house. Statement taken from Datin Rosmah in evidence. Are those material witnesses my Lord? Can they say they will not come and you subpoena us. Had they not being offered and we wanted them then we would subpoena them my Lord, that we would have to subpoena them. And that is when personal subpoena arises. And witness other than one offered is thought to be material for the defence to call. Those are the situation. And that is the situation. And that situation is not here.

The Indonesian maids are to be made available. They are in Indonesia. You can’t make available or offer someone who are not around. It is impossible. Make available or offers someone who are not around.

We urged your Lordship to carefully consider the position.

YA: Ya. Ada lagi ke?

KS: It is not as simple as my learned friend appears to make it.

YA: Ya, anything else you want to add?

KS: I think that is what I’m trying to impress upon your Lordship. The importance of…

YA: Yes, it is very important. I know.

KS: We need a ruling with this sensible and for affording Dato’ Seri Anwar Ibrahim a fair trial. He is entitled to that. You can’t deny him that. Nobody can. We urged your Lordship to make order in terms in relation to the two applications before your Lordship.

YAL: Saya perlu meneliti segala otorito-otoriti yang dikemukakan. Obviously I need time. Since you are coming back on Monday, so I think I’ll deliver it on Monday. I’ll deliver it on Monday, 8th August 2011.

KS: It is the submission of the learned DPP that R v Payne [1963] 1 WLR 637, a 1980 authority, is the only instance in which the court exercised discretion to exclude evidence illegally obtained. However, if the facts in Payne are scrutinized carefully, what emerges is that it was by trick that the evidence there was obtained. The facts of the case as set out in the headnotes are as follows:-

‘Following a car collision, the defendant was taken to a police station and was there asked if he was willing to be examined by a doctor. It was made clear to him that the purpose of the examination was to see if he was suffering from any illness or disability and that it was no part of the doctor’s duty to examine him in order to give an opinion as to his fitness to drive. The defendant then agreed to the doctor’s examination. At the defendant’s trial on charges of driving a car while unfit to drive through drink, the doctor gave evidence for the prosecution to the effect that the defendant was under the influence of drink to such an extents as to be unfit to drive. The defendant was convicted’

On appeal against his conviction, the Court of Appeal held, ‘that had the defendant realized that the doctor would give evidence as to his fitness or unfitness to drive, he might have refused to allow himself to be examined and accordingly, although the doctor’s evidence was admissible, the chairman, in the exercise of his discretion, should have refused to allow it to be given, and therefore the appeal would be allowed and the conviction quashed.’

Lord Parker CJ adverted to and adopted Regina v Court [1962] Crim LR 69, a decision of the Criminal Court of Appeal, when setting out as follows in Payne at page 639:-

‘In Court’s case, this court pointed out that while such evidence from the doctor in circumstances such as these was clearly admissible, nevertheless the chairman in the exercise of his discretion ought to have refused to allow that evidence to be given on the basis that if the defendant realized that the doctor was likely to give evidence on that matter, he might refuse to subject himself to examination.

This present case is, in the opinion of this court, on all fours with Court’s case, and in those circumstances the court is constrained to quash the convictions on counts 1 and 3, and the order for disqualification.’

Clearly, both in Payne and Court, the evidence sought to be adduced had been obtained by deception and trickery.

In our case, Dato’ Seri Anwar Ibrahim had the right to refuse to give blood samples for DNA profiling having regard to the proposition set out in Peter James Binsted v. Juvencia Autor Partosa.

In Noor Mohamed v The King [1949] AC 182, Lord de Parcq says at page 192:-

“…in all such cases the judge ought to consider whether the evidence which it is proposed to adduced is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility.

The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.’

The abovementioned general pronouncement made in Noor Mohamed had been followed in numerous other cases in England and is entrenched in the principle that the English court upholds, which is, it is ‘a judge’s undoubtedly duty to ensure that the accused has a fair trial…’ (per Lord Salmon in R v Sang [1980] AC 402 at page 445.

It is significant to note in R v Sang [1980] AC 402, Lord Salmon adverts to the following passage:-

‘3. The judge has a discretion to exclude evidence procured, after the commission of the alleged offence, which although technically admissible appears to the judge to be unfair. The classical example of such a case is where the prejudicial effect of such evidence would be out of proportion to its evidential value. Harris v Director of Public Prosecutions [1952] AC 694, 707; Kuruma v The Queen [1955] AC 197; Reg. v Selvey [1970] AC 304.’

In Kuruma , Lord Goddard CJ at page 239, says:-

‘If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by trick, no doubt the judge might properly rule it out.’

The Federal Court, at page 526, in Goi Ching Ang adverted to Noor Mohamed, Harris, Sang and Kuruma Son of Kainu v Reginam.

The authority by which the court is bound is Goi Ching Ang which after reference and discussion of the various authorities adverted to above, concluded:-

‘Evidence obtained in an oppressive manner by force or against the wishes of an accused person or by trick or by conduct of which the police ought not to take advantage, would operate unfairly against the accused and should in the discretion of the court be rejected for admission.’

[italicized for emphasis]

The learned DPP’s reference to Hanafi bin Mat Hassan v Public Prosecutor [2006] 4 MLJ 134 for the proposition that the court has no discretion to refuse to admit evidence on the ground that it was illegally obtained if it is relevant and therefore, the evidence relating to the blood sample taken from the accused was admissible as it was relevant even if it was taken without his consent runs counter to the proposition in Goi Ching Ang.

In any event, it must be observed Goi Ching Ang does not appear to have been cited in Hanafi which is a Court of Appeal decision.

On the evidence adduced in the TWT, it is clear after Dato’ Seri Anwar Ibrahim had refused to give his blood samples for DNA profiling as requested by the doctors at HKL, which was his right, he was brought back to IPK KL and was there supplied by DSP Yahya with the Good Morning towel, toothbrush and mineral water bottle.

It is apparent, having regard to the sequence of the events, that the DNA extracted from the said items had been brought about by deception/trickery. This is manifested by having regard to the evidence led in general trial that Supt. Jude Periera had directed police personnel guarding the lock-up not to touch the items referred to hereinbefore.

Why was there a need for such directions unless it was a ploy hatched by the police to ensure DNA samples would be extracted from these items despite Dato’ Seri Anwar Ibrahim having earlier exercising his right by refusing to give his blood samples for DNA profiling at the HKL, which was clearly within the knowledge of Supt. Jude Pereira who accompanied Dato’ Seri Anwar Ibrahim to the HKL.

It is very significant to note that Supt. Jude Periera was not called as a witness in rebuttal in relation to the directions he gave to the said police personnel.
The irresistible conclusion is that the police applied unfair methods and unfair means to procure DNA from those items.

With regard to Taufik’s evidence that he was directed by CID chief Dato’ Sri Bakri Zinin to arrest Dato’ Seri Anwar Ibrahim for diverting from IPK KL, it is significant to note this was not the ground given by Taufik for Dato’ Seri Anwar Ibrahim’s arrest. Taufik testified the grounds of arrest he gave to Dato’ Seri Anwar Ibrahim was that he had committed an offence under Section 377B of the Penal Code.

In conclusion, it is not the American authorities which the court should be concerned with but by the decision of the 5-man bench of the Federal Court in Goi Ching Ang.

If I could round up, what is important here is not what the evidence is of the DNA profile which in fact is disputed, the evidence given by Dr. Seah and Aidora and cannot be taken into account for the purpose of coming to a conclusion in a trial within a trial. A trial within a trial is a part from the main trial. What is to be considered is what transpired in the trial within a trial.

I take your Lordship to S.114(g) of the Evidence Act. I refer to it yesterday. Why when witnesses are available, Supt. Jude, DSP Yahya, Dato’ Seri Bakri Zinin and other police personnel who were guarding the lock-up not called as witnesses during rebuttal. These are matters that YA has to take into account when coming to the conclusion as to whether in this case the unfair method and unfair means employed by the police and above all unlawful arrest which in fact preceded the events which led ultimate to the obtaining of the DNA profile from the items which are disputed.

The proper case for YA to rule that the defence has on a balance of probability and that is that case, YA. Test set out by the Privy Council in the case of Yuvaraj that it is reasonable for YA to come to the conclusion that the ground upon which we have [] our submissions ought to be in fact [] by YA.

We pray under those circumstances that the three items to be excluded as evidence in the trial properly. Much obliged.

MY: May I just have one minute?

YA: Yes, it should be okay.

MY: I would like to bring to the court’s attention that R v Payne was decided in 1963 by the Court of Appeal. R v Courts 1962. Meaning 17 or 18 years before R v Sang which is now the leading case or authority with regards to exclusion of evidence. And the decision in R v Payne was criticize by the Court of Appeal in R v Sang at page 420 because the judge said they couldn’t follow what the judges said in R v Payne. It was commented upon by all the judges in the House of Lords in R v Sang in particular Lord Diplock at page 435. That’s all.

KS: In reply to that, R v Sang does not appeared in the cases cited in Goi Ching Ang but that case appears to have been considered by the 5-man bench in the Federal Court at page 526. R v Sang was cited, Kuruma was cited, and considered by the 5-man bench in the Federal Court. What is important is not what was decided in R vSang. That is an English case.

What is important is what is decided in Goi Ching Ang. In this case Sang was considered and therefore the principle in Goi should prevail. YA is bound by Malaysian law, not by American law and for that matter even by English law.

[]. We would like YA to follow the decision in Goi.

YA: Stand down for a while.
[10.28 a.m.] Stand down.

[10.35 a.m.]
YA: This is my ruling in trial within a trial and full ground will be given in due course. I find in this case the DNA samples on toothbrush-ID58A, Good Morning towel-ID59A, and plastic bottle-ID61 were obtained by unfair means against the wishes of the accused. These items and any evidence related to these items especially evidence relating to DNA analysis conducted by SP6 on those items is to be excluded from being part of the notes of evidence.

YA: Can we proceed with the main trial?

MY: YA, because I’m not ready with the witnesses, may I ask for tomorrow?

YA: How many witnesses more you’ve got?

MY: 3 witnesses, JPJ, Ibrahim Yaakob and Dr. Razuin and then the IO.

YA: We continue tomorrow. They got no witneses. Continue at 9.00 a.m.

KS: Could we have the trial tomorrow at 8.30 a.m.-1.00 p.m.? I have another trail in the afternoon.

YA: We start tomorrow at 9.00 a.m. you have to make some arrangements for other cases. This case takes priority.[10.37 a.m.] Adjourn.

NH: Yang Arif, at this juncture bolehkah eksibit ini ditandakan sebagai P?
KS: We are objecting and to it’s admissibility and we ask for trial within a trial.
YA: What is the basis of your objection. The court needs to know. Maybe you can mark as ID at this stage. I don’t know.
SN: It is ID and …..
NH: As long as saksi ini sudah camkan semua kita boleh convert kan kemudian selepas hujahan nanti.
YA: Ya. Kita markkan sebagai ID dahulu.
NH: Kita tidak perlu panggil saksi ini lagi. Kita boleh convertkan terus.
YA: Tak apalah. Kalau nak panggil pun tak apa. It won’t take time.
KS: He has to be called .
YA: Tak apalah. Itu kemudian.
KS: It has to be later and depend on admissibility

KS: It is not admissible because we are not supplied the document under section 51A
SN: I have no recollection about the document being served
NH: Ikut maklumat kami sudah serve.
YA: You all have to sort things out.
KS: We have to sought it out to determine the admissibility.
NH: Can we mark it as ID first Yang Arif.
KS: Can we sought this out?
NH: If that is the case, boleh saya tanya soalan untuk refresh memory?
KS: From this document?
NH: Yes
YA: Jangan ditandakan lagi. It is not marked as exhibit yet. You have to ask him orally lah
NH: Yes, I will ask him orally.

[2.56 p.m.]
NH: Dengan izin, mohon panggil Lans Koperal Nik Rosmady Nik Ismail.
SN: YA, could we just make a comment? We objected to Buku Lawatan for reason that the front cover doesn’t given to us. The second page is given to us, but the cover was not, that’s why we couldn’t recognize. It was given to us earlier. What can I suggested is, maybe we can just compare before it start.

KS: YA, we want to object. These exhibits and the rest recovered from the cell is inadmissible. And for that purpose, we want a trial within a trial. We are alleging that unfair methods were used by the police in securing these exhibits. And the court has discretion to exclude admission of such evidence YA, on the basis upon which we alleging that this evidence ought to be excluded. For that purpose, there must be a trial within a trial. We will submit on the necessity of that permohonan. If your Lordship rules that this evidence is inadmissible, then it ought to be excluded []. In the event a trial within a trial is ordered, DSAI will be giving evidence in the trial within a trial. We will submit on that.
YA: Yes, of course Mr. Karpal still belum habis lagi buat submission lah, we will continue tomorrow. For the time being, DY?
MY: YA, if I can understand correctly, in most circumstances, especially with regard to confession of the witness, the moment the statement is about to be tendered, then counsel can object on the ground of the involuntariness, then we will know. There are three: inducement, threat or promise that we have to address. Here we talked about unfairness method.

YA: Now, what I see is they asking the court’s discretion to exclude evidence which is prima facie is admissible, but they want to exclude it on the ground of unfairness.
MY: I think that there are 2 aspects. Firstly), whether or not we need to have a trial within a trial. 2) Whether or not after we have conducted a trial within a trial, and if it is proven that unfairness method had been employed, whether or not the court can used its discretion exclude it. The question is, I don’t know what is the unfairness method that I have to address.
YA: They have to show lah. Because they are asking the court’s discretion, so they have to prove.
KS: The onus is on us. My learned friend knows about that.

MY: Now this is my problem YA. First, the case of [], Federal Court’s decision 1980; you alleged, I prove, prosecution will prove, then we have rebuttal evidence, but still the prosecution must start first to show the irregularities of this exhibits. So until and unless I know what they are complaining, I wouldn’t be able to address even if we need the trial within a trial. Let alone the evidence that we have after this. I mean, this is the kind of issues that we will address tomorrow YA.
YA: Tomorrow we will listen to the submission. And next we will see whether a trial within a trial is needed or not.

KS: So, we need the notes for the purpose of tomorrow’s submission. The notes this morning and afternoon.
YA: No, it is very difficult for us to transcribe within time actually. We can give you the CD so you can tengok CD.

Q: You were asked about the feedbacks you received about your services which is the court testimony which you said also as part of your quality assurance. The question is, what is the quality assurance as regards to court’s testimony?
A: That is a component of standard 12 of the [] audit document and one component of that standard was each analyst court’s testimony should monitored at least once a year or annually. The monitoring of court’s testimony is not the monitoring of judgment.

Q: So, it’s the monitoring of the court’s testimony and not the judgement?
A: Yes. And that monitoring is carried out during the course of the testimony and not after that.

Q: Regarding the dates on P6(E) the body swab from sample B4 (P35), P6(F) from sample B5 (P36), P6(G) from sample B6 (P37). On P6(E) the date was 28.06.2006, on P6(f) the date was also again 28.06.2008 which you told the court in your testimony yesterday it could be 28.06.2008 or 28.08.2006 or 06 while P6(G) is 26.06.2008. You were asked did it not strike you something was odd in this scenario because you said you knew the samples were taken on 28.06.2008. You disagree that by your standard you ought to have them rejected. Please explain why do you disagree by the contention by the counsel?
A: Our return procedures are not on basis for rejection, it’s at the point where the samples were received from the submitting officer. And any labelling afterwards i.e after examination, are documented but those documentation, if there were errors on those documentation which is done by another party we will note it down in the documentation. But at that point, we have not form any basis for rejection.

Q: When you received these samples specifically the three samples, were the seals intact?
A: Yes, they were intact.

Q: Did the dates affect the integrity of those samples when you received them on 30.06.2008?
A: No, they do not.

Q: Why?
A: Because the seals were intact and the labelling was handwritten.

Q: Can you confirm that the dates were not written by you?
A: The dates were not written by me.

Q: To the question that you should also look at other samples in suspicion, you said you should give the benefit of the doubt. Would you like to explain now what do you mean by this?
A: That was because the three receptacles that was shown to me where one of it is dated 28.06.2008 and another one was dated 26-060.2008, the samples has some discrepancies when it was documented down. And I said you should give the benefit of the doubt to the person who labelled that because transcription errors can occur in writing and labelling.

Q: According to standard of Jabatan Kimia Malaysia on sampling, what would you considered as tempered seal container?
A: Tempered proof container would mean that if an authorized person had opened it before me, then it can be detected.

Q: In this case, would you consider that the samples were put in tempered proof containers?
A: It is.

Q: In this case if the seals of the samples had been tempered, would you know it?
A: I would.

Q: How?
A: If the cap is opened as demonstrated yesterday you have to peel the top but you have to peel it down to the other end to open the other end. You have to open the receptacles to have access to the swab sticks. That means you have to peel it down to the other end. And if that happens you can’t replace back without leaving any traces that it has been peeled.

Q: Would you note down any samples which you believed or think had been tempered in your analysis?
A: Yes.

Q: Would you reject that samples?
A: That would form a basis for rejection then.

Q: In this case, did you reject any of the samples?
A: No, I did not.

Q: On the articles again, the DNA Commission of the International Society of Forensic Genetics, the recommendations on the interpretation on mixtures. Do you know whether this recommendation has been adopted as standards?
A: No. They have not been adopted as standards particularly in the interpretation of mixtures. This is a very dynamic field.

Q: Is there a body or organisation of your community that will set standards to be followed?
A: There are two big international groups that would normally set the standards for laboratories that carried out DNA profiling, one is the International Society of Forensic Genetics and another society from North America, SWGDAM (Scientific Working Group on DNA Analysis Method s). They are the two big international groups that endorses best practices for carrying out DNA profiling in the laboratories. But as I have stated yesterday, labs that have guidelines that are not endorsed by these bodies does not necessarily mean they do not make a standard.

Q: In this particular guidelines laid down in this article, do you know whether it has been adopted as standards by these two bodies?
A: No. There are newer approaches and even until today the approaches are still changing. As I’ve said, mixtures interpretation is a dynamic field.

Q: Please inform the court since when were you attached at the Chemist Department PJ?
A: I’ve been attached to the Chemist Department of PJ since 1998.

Q: What is your present or current designation at the department?
A: At the moment, I’m the Ketua Unit of DNA paternity.

Q: How long have you been in your current designation?
A: I’ve been in this current designation since 2008.

Q: Please tell the court what are your main functions and duties at this unit?
A: I received, analyse and report case pertaining to murder, rape, assault and any other cases that needs DNA analysis on biological evidence.

A: I have a basic degree in chemistry graduated from UM in 1998. I’ve a Masters Degree from university of Auckland in 2007.

Q: Please state the courses that you have attended in relation to your line of work, locally and internationally.
A: [read Topic 6 of the CV]

Q: You mentioned that you have attended this training, [Item 11 of Topic 6] Onsite Training of ABI 3100 Genetic Analyser. Please elaborate further on this.
A: Basically I’m trained to handle the instrument, trained to detect the irregularities on the instrument, trained to run the instrument as well as generate profiles results from the instrument. Basically how it works, what are the function of the instruments and ability to run and detect irregularities so that I can call the technician to fix the irregularity.

Q: And you have a certificate on this?
A: Yes, I have,

Q: What about the training of Promega Powerflex 16?
A: Basically I learned about Promega Powerflex 16.

Q: What is this Promega Powerflex 16?
A: In the world there are only 2 companies which has the ability to come out with the forensic amplification kit which are Applied Biosystem and Promega. Currently in Jabatan Kimia Malaysia we are using the Applied Bio-system which are called Identifiler. However, we also need to evaluate other amplification kit in the market. Therefore I went for the training of Promega Powerflex 16 which is another set of amplification kit to see how it works and to learn about the differences.

Q: Did you also obtained certificate from this training?
A: No.

Q: Are you a member of any professional bodies relating to your work?
A: I’m an associate member of Jabatan Kimia Malaysia since 2000. I’m also the counsel for Forensic Society of Malaysia since 2009.

Q: Anything else?
A: No.

Q: Have you ever attended any proficiency test?
A: Yes, I have. It is on the last page of my CV. Just for the court’s knowledge, being DNA analyst of Chemist Department Malaysia, we are accredited under ASCLD and it’s a criteria for DNA analyst to take proficiency testing twice a year and we are required to passed. The proficiency test that I attended are [read Topic 11 of CV]. I’ve passed all my proficiency testing without any doubt.

Q: Apart from the training that you have attended and the proficiency tests that you have undergone and passed, did you make any presentation of any papers in any international symposium?
A: Yes.

Q: What are the papers you have presented before?
A: [read CV].

Q: This proficiency test that you stated just now that you have undergone, are these tests accepted internationally and by all the scientists in the area of your work?
A: Yes. The coordinator and the agency involved in the international quality assurance is the Collaborative Testing Services both are accepted by ASCLD as the provider for proficiency testing.
Q: Before you were posted in your current designation, were you attached to any other department in Jabatan Kimia Malaysia?
A: I’ve been working in the forensic laboratories since 1998 and I have not been posted to any laboratory. Before I’m a Ketua Unit, I’m a chemist there.

Q: Have you ever testified in court before?
A: Yes

Q: How many times?
A: I cannot recall how many times I have given testimony in court before, but I think more than 15-20 times.

Q: In your line of work as a chemist, do you any experience in analysing blood samples?
A: Yes, I do.

Q: Is there a DNA laboratory at the Jabatan Kimia Malaysia PJ that you were attached to?
A: Yes, there is a DNA lab at the department

Q: What are the equipments available at the lab for the purpose of DNA analysis?
A: There are a lot of equipments available at the laboratory for DNA analysis. However the mains are the genetic analyser, also thermocycles, realtime PCR for quantisation and also other instruments relating to DNA analysis.

Q: Is the DNA lab and the equipment is the same or similar in other DNA labs in the world?
A: I wouldn’t be able to say all over the world, however the places that I’ve been to which is Sydney, US, New Zealand and I’ve also spoken to most of the assessor of the ASCLD, our labs equipment are similar to the others that I’ve been to and I’m sure any other labs have similar equipment.

Q: Has your lab been accredited internationally?
A: Yes, our lab has been accredited with the American Society of Crime Laboratory Directors since 2005. Basically, to earn the accreditation is not easy. We are the third lab in Asia after Hong Kong and Singapore to have that accreditation. So, to us it is a big thing, important as to the quality assurance.

Q: Now, we talk about standards used by your department in relation to DNA analysis. Are the scientists in the same line of your area of work in the world adopts the same standards, procedure used by your department in relation to DNA analysis.
A: The procedures that is adopted by Department of Chemistry Malaysia are the procedures that has been validated in the Department of Chemistry Malaysia based on the guidelines and recommendations from the international bodies such as the Scientific Working Group of DNA Analysis Method (SWGDAM) and these methods have been accepted wide world and in the forensic society.

Q: What about the quality assurance of your department?
A: Whatever that has been analysed in the department, the quality assurance is as per the international standards where we have segregated rooms where the samples are handled with the outmost care with all the quality assurance that we have , i.e the positive control, the negative control, reagent blank to ensure the DNA profile generated by the Department of Chemistry are the actual profiles and to ensure the quality assurance of the DNA profiles.

Q: Have your lab received any ISO certificate for that matter?
A: Yes. We have ISO 9001 as well as ASCLD accreditation which is enough for us.

Q: How many times have you conducted DNA analysis since you were attached to the Chemistry Department on the request of the police or other government bodies?
A: I’ve been working in the lab for 12 years and I can safely says it is definitely more than 100 thousand samples.

Q: In cases involved request by the police, what are the types of cases where DNA analysis are needed?
A: The cases that I received are murder, rape, assault, paternity, drugs and any other cases pertaining to biological evidence that requires DNA analysis.

Q: Were you working on 17.07.2008 at about 6.56 p.m.?
A: Yes, I was working at the Chemistry Department Malaysia in PJ on 17.07.2008 at 6.56 p.m.

Q: Did you on this date, received a request from the police?
A: YA, may I have the permission to refer to my report and my notes?

SN: My Lord, at this stage we have to raised an objection as I’ve been instructed by the lead counsel that he wants to make a serious objection to certain [] evidence at this stage in respect to this report. He is on his way from Shah Alam. [].
YA: What evidence? So far it’s about her qualification.
SN: New evidence coming from her…
YA: We don’t know what evidence as yet. How am I going to make a ruling if kita tak tahu apa evidence yang dibawa masuk.
SN: It will affect the source of the evidence and the source of the police coming in. This would be a contentious issue. We’ll put submission.
MY: YA, at this point in time, I did not see anything above reasonable. We are talking about a chemist who received a request from the police to analyse certain specimens . []. Even if she gives evidence with regard to all the analysis and the result, it will not implicate anybody. This is a witness of both expert witness and witness of fact. She received the sample – that is a fact, and then she analyse and this is her reading. I don’t see anything above reasonable . []. We’ve not come to any stage which necessitate you to raised up an objection. That’s all.
SN: The point is very clear here that some of the evidence is brought by Jude. That’s the issue here. That is subject for legal and [] submission. There are admissibility issues there. At this stage I have to raise an objection so that can be []. Therefore I think your Lordship should stand down this matter and probably we can argue it up in chambers whether your Lordship would want to consider that it. Otherwise at this stage it will be too late and it will prejudice us. []
YA: The problem now is you just raised an objecting without knowing the evidence that you are going to object. []. Anyway, I’m going to stand down for a while and if there is an objection, I will hear it.
[9.34 a.m.] Stand down.

[10.33 a.m.]
KS: My apologies for not being here this morning.
YA: You would like to see me in chamber?
MY: No. []. Can we continue with the EIC?

Sambung pemeriksaan utama SP5 oleh NB.

Q: You said you were working on 17.07.2008 at about 6.56 p.m. Did you on this date received a request from the police?
A: Yes. I did.

Q: Was the request accompanied by POL 31?
A: Yes.

Q: Who was the police officer who made the request to you?
A: DSP Jude Blacious.

Q: Would you be able to identify the said office?
A: Yes.

Q: Is this the said DSP Jude Blacious that you mentioned just now?
A: Yes.

DSP Jude is identified.

Q: Did you received any items in relation to the request from DSP judy?
A: Yes.

Q: Were those items you received correspond with the items reflected in POL 31?
A: Yes.

Q: Please inform the court what was the items that you received from the said DSP Judy Blacious?
A: I received 4 envelopes respectively marked D, D1, D2 and D3 which all are sealed Polis Diraja Malaysia 330 and Polis Diraja Malaysia Forensic.
Q: When you received those envelopes, what were the conditions of the envelope, the seals in specific?
A: When I received the envelopes, the enevelopes are in good condition and the seals are still intact.

Q: Were there markings on the envelope?
A: There are markings apart from the one I told the court just now.

Q: Did you issue any laboratory number for the envelopes you received on that day?
A: Yes. I issued a receipt bearing the laboratory number (PJ) FOR 6334/08-3

Q: You issued the laboratory number on the envelopes first?
A: When I received the exhibits, I register the case. The laboratory number was given and the laboratory number were placed on the sticker placed on the envelopes I received.

Q: Did you issue any receipt?
A: Yes, I issued a receipt bearing the laboratory number.

NB: May I refer the witness to a Resit Rasmi Jabatan Kimia Malaysia dated 17.07.2008.

Q: Is this the receipt that you have issued?
A: Yes, this is the receipt that I issued.

Q: Can you confirm there is your signature on the receipt?
A: Yes. I confirm this receipt is generated by me and signed by me.

Receipt from Chemist Department dated 17th July 2008 issued by Aidora is marked as P55

Q: Were they any seals of Jabatan Kimia Malaysia on those items, on the envelope?
A: After I received it and analysed it, I sealed it thus there is the Jabatan Kimia Malaysia seal now.

NB: I now refer the witness to the envelopes mentioned just now. First, I refer the witness to envelope marked “D”.

NB: Looks like I have to ask another question first, YA.

Q: After you have received these envelopes, you returned the exhibits after you conducted your analysis and examination?
A: Yes.

Q: How did you put the items when you returned them?
A: Upon receiving, the items were placed into a plastic packet which is Jabatan Kimia Malaysia plastic packet bearing the laboratory number and my signature, heat seal and after the analysis, I also sealed all the envelopes with my seal, the Jabatan Kimia Malaysia security label, placed into the same plastic packet and heat seal again with my signature.

NB: I refer the witness a plastic packet containing envelopes in it.

Q: Will you be able to confirm this is the plastic bag?
A: Yes. This is the plastic bag that I put all the exhibits with the laboratory number (PJ) FOR 6334/08-3, my name and there is a heat seal and it has my signature over here. I hereby confirm this is the plastic bag supplied by me.

Q: Is the heat seal is still intact today in court?
A: Yes.

Q: So you confirm again this is the plastic bag you that you have provide after you have done your examination and the seal is still intact today?
A: Yes.

NB: May I have this plastic bag be marked as P56.

Plastic bag from Jabatan Kimia Malaysia bearing laboratory number (PJ) FOR 6334/08-3 is marked as P56.

Q: You told the court that you put all the exhibits in this plastic bag earlier . Will you be able to identify the envelopes if it is shown to you?
A: Yes, I will be able to identify.

NB: May I have the permission of the court for this particular witness to open the package?

Q: How many envelopes are there?
A: There are 5 envelopes.

Q: You said you received 4 envelopes.
A: Yes, I received 4 envelopes which is labelled “D”, “D1”, “D2” and “D3”. During the course of my analysis and examination, I found a hair on the exhibit labelled “D2” which I then put into an envelope as exhibits D2(a), thus having 5 envelopes now.

Q: Can you please tell the court now what are the envelopes?
A: Envelope “D” with marking on it, that is for Travers Report 4350/08, 17/07/2008, sehelai bulu di atas lantai, IO J.B.Pierera. This is the envelope that was given to me. This is the the PJ laboratory number sticker, my seal and my signature on the seal.

Q: When you received the envelopes, was the seal Polis Diraja Malaysia seal and Polis Diraja Malaysia Forensic still intact?
A: Yes, when I received them they were intact and I can it is now.

Q: You can confirm this is the envelope that you received on 17.07.2008?
A: Yes, this is the envelope that I received on 17.07.2008.

NB: If there is no objection on the part of my learned friend, may this envelope marked as P57?
YA: P57.
MY: YA, just like what we discuss in chamber just now I would agree for this envelope and whatever content of it today marked as ID first.
YA: So, ID57.

Envelope “D” is marked as ID57.

Q: Did you examine the content of this particular envelope?
A: Yes, I examined the content of the envelope.

Q: Envelope D, marked ID57?
A: Yes.

Q: What is the content of the envelope?
A: YA, may I have permission to look at my report and my notes? In envelope “D” is one strand of hair taped onto a piece of white paper.

Q: If you were to see this exhibit, will you be able to identify it?
A: Yes.

Q: How would you be able to identify?
A: It would have my (PF) FOR laboratory number sticker.

NB: May I have permission from court today for the witness to open the envelope?

A: A piece of paper, white paper, my PJ laboratory number sticker, my signature, the strand of hair, the writing here Travers Report 4350/08, 17/07/08 – this is done by somebody else, the signature is not mine. []

Q: Did you confirm that this is the strand of hair taped onto a piece of white paper that you received?
A: Yes.

A hair taped onto a piece of white paper is marked as ID57A.

Q: What is the next envelope?
A: Envelope “D1”.

Q: Will you be able to confirm this is the envelope you received?
A: Yes, this is the envelope that I received with my PJ laboratory number, also my seal is here with my signature, Polis Diraja Malaysia initial seal is also here. The seals are all intact, the envelope are still intact.

Q: There are some writings on the envelope. Were those your writing?
A: No.

NB: May I have this envelope marked as ID58?

Envelope “D1” is marked as ID58.

Q: Did you examine the content of this envelope?
A: Yes.

Q: What did you find in the envelope?
A: In the envelope “D1” contains white toothbrush which I have swab for DNA analysis.

Q: How would you be able to confirm?
A: It has my laboratory number sticker on it.

NB: May I have this particular witness to open this envelope, YA?
A: Toothbrush with PJ laboratory number and the marking “D1”.

Q: Do you confirm that this is the item you received?
A: Yes, this is the item I received on the envelope “D1”.

A white toothbrush is marked as ID58A.

Q: You said that you swab this toothbrush for DNA analysis.
A: Yes.

Q: Perhaps you can show to the court which part of the toothbrush that you did for swabbing.
A: I did the swabbing on both part which is the bristle of the toothbrush as well as on the handle.

Q: Are the seals still intact today in court ?
A: Yes, the seals are still intact.

Q: Tare some markings on this envelope apart from the writings here. Can you confirm the writings on the front page is yours?
A: No, not mine.

Q: There is here behind, handwriting, written here “Note: for DNA profiling”, there’s a signature, dated 17.07.2008. Is this your handwriting?
A: It is as per the other two envelopes. But it was not done by me.

NB: May I have this envelope marked as ID59, YA?

Envelope “D2” is marked as ID59

Q: So, you inspect and examined the content of this envelope?
A: Yes, I did.

Q: What did you find in the envelope “D2”?
A: In envelope “D2”, a “Good Morning” towel bearing one strand of hair which I collected as exhibit “D2(a)”. The towel was swabbed for DNA analysis.

Q: Will you be able to identify the exhibits?
A: Yes, I will be able to identify it as the exhibits will have my laboratory number sticker.

NB: May I have the permission of this court for this particular witness to open the envelope.

A: This is the “Good Morning” towel bearing my laboratory number and marking “D2”. There are writings on the towel. The signature and 17/07/08 is not done by me. However the writing “D2(b)”, “D2(c)”, “D2(d)” and “D2(e)” are done by me.

Q: What are those marking for? “D2(b)”, “D2(c)”, “D2(d)” and “D2(e)”.
A: This towel is big, therefore for swabbing DNA analysis I have to divide it into 4 parts. I swab the whole towel and therefore the towel has four parts which is 1, 2 3 and 4 (demonstrate to court).

Q: So you did four swabbing on this towel.
A: Yes, I swabbed four area of the towel.

NB: May I have this towel to be marked as ID59A, YA?

A “Good Morning” towel is marked as ID59A.

Q: You said that in this “Good Morning” towel bearing a strand of hair.
A: Yes.

Q: What happened to the hair?
A: The hair was collected as exhibit “D2(a)”.

Q: Where do you put this strand of hair that you found on the towel?
A: This strand of hair is taped on a piece of paper and put into an envelope.

Q: Is that envelope yours?
A: Yes, it is Jabatan Kimia Malaysia envelope bearing my seals as well as my signature.

Q: Are the seals still intact today?
A: Yes, the seals are still intact.

Q: The marking “D2(a)” on that particular envelope, did you do the marking?
A: Yes. I did the marking.

Q: So you took that strand of hair on that “Good Morning” towel and put it in this envelope?
A: I taped the strand of hair on a paper and then I put it in a plastic bag and then put it in this white envelope.

Q: Will you be able to identify this strand of hair that you taped on a paper?
A: Yes, I will be able to identify.

NB: May I have this envelope “D2(a)” be marked as ID 60, YA?

Envelope D2(a) by Jabatan Kimia Malaysia is marked as ID 60.

NB: May I have permission for this particular witness to open the envelope in court?
A: A plastic packet bearing my laboratory number, “D2(a)”, hair found on “D2”. The writing is done by me.

Q: Did you seal this plastic?
A: No, I did not. I stapled it.

Q: Is the hair taped onto the paper now?
A: Yes.

NB: Can I have this plastic marked as ID60(A), YA?

Plastic inside envelope “D2(a)” is marked as ID60A

NB: May I have the permission of the court for this witness to open the stapled plastic?

Q: Again, can you confirm all the handwriting on the envelope is not by you?
A: No, the handwriting is not by me.

NB: May I have this envelope now marked as ID61?

Envelope “D3” is marked ID 61

Q: Did you inspect and examined the content of this envelope?
A: Yes, I did.

Q: What did you find in it?
A: In envelope “D3”, an empty “CACTUS” mineral water plastic bottle which was swabbed for DNA analysis.

Q: Will you be able to identify this mineral bottle in this particular envelope?
A: Yes, I will be able to identify it. It bears the laboratory number sticker.

NB: May I have the permission of this court for the witness to open the envelope?

A: Mineral water CACTUS bottle is empty and there is the laboratory number and marking “D3”. I hereby confirm this is the exhibit that I received.

Q: Did you do any swabbing on this mineral water?
A: Yes, I swabbed the handle area which is the body of the bottle and also the inner mouth of the bottle, the mouth area.

NB: May we have this mineral bottle now marked as ID61A.

CACTUS mineral water bottle is marked as ID 61A.

Q: Again, which part of the bottle that did you did swabbing?
A: The handle and the top mouth area.

Q: Where did you keep these items after you received them?
A: Upon receiving them, I kept in the chest freezer which is locked.

Q: are there any items for other cases in that freezer?
A: Yes, there are other items of other cases in that freezer.

Q: How do you ensure that the other items in other cases do not mixed with the items in this case?
A: Upon receiving the envelopes, I put them in the plastic packet, I heat seals it with my signature bearing my laboratory number, therefore the samples do not leaves out of the bag nor can any other samples interfere with my exhibits that I have in here.

Q: Did you put it in P56?
A: Yes, in P56.

Q: This chest freezer, is there anyone else who have access to the chest freezer?
A: Yes, all the laboratory personnel in the Forensic Section will have access to the chest freezer.

Q: On 17,07,2008, what was the request made to you regarding these exhibits that you have received?
A: The IO request that I do DNA profiling on this exhibits.

Q: Did you conduct analysis as requested?
A: Yes, I did.

Q: When did you start conducting the analysis?
A: I start on 18.07.2008.

Q: When did you finish conducting the analysis?
A: The examination part of the exhibits was completed on 18.07.2008 itself.

Q: After conducting or completing your analysis, did you prepare a report?
A: The examination was completed on 18.07.2008 and then I started doing DNA analysis on 19.07.2008 and completing by 21.07.2008.

Q: As a result of the analysis that you have conducted and completed, did you prepare a report?
A: Yes. A report bearing laboratory number (PJ) FOR 6334/08-3.

NB: May I refer this particular witness to the report of (PJ) FOR 6334/08-3 dated 22.07.2008.

Q: Is this your report?
A: Yes. This is a copy of my report with my signature. I hereby certify that I prepare the report and the signature is mine.

Q: You told the court that you conducted DNA analysis on 18.07.2009?
A: The examination of the exhibits were done on 18.07.2008, but the DNA analysis is started on 19.07.2008.

Q: Please inform the court the meaning and concept of DNA and DNA profiling.
A: DNA stands for []. DNA profiling is the DNA profile that is generated from the biological evidence which is DNA which is found on evidence. In this particular case I was requested to do DNA analysis on these items which is traced or contact DNA analysis. Therefore all the items apart from hair were swabbed for traced DNA.
After I have done the swabbing, the swabs were later subjected to DNA analysis. DNA analysis is segregated into 4 parts. First, the traced DNA is extracted out where DNA is extracted from the swabs. Second, the extracted DNA is quantified to determine the concentration of DNA. Three, the extracted DNA is amplified using polymerase chain reaction (PCR) on the STR (short tandem repeats) loci. Fourth, the amplified product were later run through the genetic analyser to get the DNA profile.

Q: I think what you have just explained to the court is the technique that you used. My question again is the concept of DNA and DNA profiling.
A: Every human being or living things have DNA. It consist of 4 bases [] or as people know it, a, c, t, g which is the basis for human being. The difference between humans and other plants or animals is the sequence of the bases. In human, there are 6 billions bases that consist of DNA.
This genetic material is unique to human being. There are no human being which has the same DNA profile unless the people are identical twins which means that one ovum fertilised by one spermatozoa and if God willing it become two or three. In this condition, your DNA will be identical. Even if they are twin, but two separate ovum fertilised by two spermatozoa, the DNA will still be different. So, they are very unique.
Because of the uniqueness profile for individual, for forensic use, it is used for identifying people or individuals and in forensic context, it is to compare the origin of certain biological evidence.

Q: On the examination of the exhibits. Please tell the court the exhibits that you have conducted DNA examination and analysis.
A: I examined and analysed exhibit “D” which contains hair, “D1” – DNA traced swabs from toothbrush, “D2” – the traced DNA from “Good Morning” towel, “D2(a)” – the hair found on the “Good Morning” towel, and “D3” – traced swabs from the mineral plastic bottle.

Q: What was the method that you used in your DNA analysis?
A: The technique used is the polymerase chain reaction (PCR) on DNA profiling analysis which was carried out on the genetic locus for gender determination which is amelogenin and 15 STR (short tandem repeats) loci mainly DS81179, D21S11, D7S820, CSF1PO, D3S1358, TH01, D13S317, D16S539, D2S1338, D19S433, vWA, TPOX, D18S51, D5S818 and FGA which is the names of the 15 STR loci which I conducted analysis.

Q: Please inform the court what is the procedures that you followed in conducting the DNA profiling.
A: ¬Again, I start from the DNA analysis. First one is the DNA extraction. Basically the traced DNA swabs were subjected to chelex extraction method, [] standard extraction method that they used world wide. It is accepted, it also have been published in journals since 1990. And then quantification steps is done on the realtime PCR where I’m able to get the concentration of the DNA. The third, the amplification technique using the PCR technique. The PCR technique is the common technique where the technique was validated, the procedures have been validated throughout the whole world. It is wherever you are going now for DNA analysis people are talking about PCR and this 15 loci and amelogenin as per what I’ve told you earlier on which is a product of amplification kit for forensic use, which is a product by Applied Bio-system and this Applied Bio-system were given mandate to validate their kit and this kit were used and the name of the amplification kit is Identifilier. And lastly the amplified product is subjected to the Genetic Analyser instrumentation where the DNA were separated according to their size and therefore we gather DNA profile which will later then summarized and put into this report.

Q: Was there a calibration done on your analysis?
A: During every steps of my analysis from extraction, quantification, amplification and the instrumentation has all the quality assurance that is needed where at every stage there were positive control, negative control, as well as the reagent blank and all the instrument used has been maintained and ensure it is in working order. Even prior to the used of the instrument, it is checked to ensure that it is in the best condition order so that the results produced are free of any contamination and free from error.

Q: You mentioned in your testimony a while ago about the Genetic Analyser. Is it software?
A: It is an instrument.

Q: At that point of time when you were conducting examination and analysis, was this machine operating in its ordinary course of business.
A: Yes, they were in working order.

Q: Was the machine working in its ordinary course of business?
A: Basically, the is working fine and I’ve already check prior to put the samples in and even putting the samples, I run the samples together with the positive control. Positive control are known DNA profiles which is not done by me, it’s given together by the Applied Bio-system kit which shows that the result must tallies this profile. So the positive control samples were okay, the results were fine, the negative control was fine, so therefore yes, the instrument is in its ordinary course of business.

Q: What are the results that you have obtained from your analysis?
A: The DNA profiles were successfully developed from the toothbrush “D1”, towel “D2” and bottle “D3” but not from hairs ”D” and “D2(a)”. This DNA profiles matched each other indicating that the DNA identified originated from the same source.

NB: I’ll come to this stage, YA where I’ll go with the appendix attached together with the electro-phoreogram which I will tender shortwhile. YA, I’m going to take a little while []. So, may I have a 10 minutes break?
YA: 12 p.m.

[11.41 a.m.] Stand down.

[12.02 p.m.]

Sambung pemeriksaan utama SP5 oleh NB.

Q: We are now at your results of your analysis and your examination. You informed the court that DNA profiles were successfully developed from the swabs from the toothbrush, the towel and the bottle but not from the hairs.
A: Yes.

Q: Did you also mentioned that this DNA profile match each other.
A: Yes.

Q: Indicating that from these three items “D1”, “D2” and “D3” it originated from the same source?
A: Yes. The DNA profile of the toothbrush “D1”, towel “D2” and bottle “D3” were of a common origin of a single source DNA profile.

Q: You have the summary of your STR results attached to your report.
A: Yes.

Q: Where did you get the summary of your STR results here?
A: The summary of the STR results was summarized from the electro-pherogram generated by the Genetic Analyser.

Q: Do you have the electro-pherogram chart with you today?
A: Yes, I have

Q: Can you confirm that the chart comes from the machine Genetic Analyser?
A: Yes.

Q: Did you produce it from the machine? Did you print it out?
A: Yes. This is the copy of electro-phoreogram that is generated from the samples.

Q: Can you confirm that there is 16 pages here of the electro-phoreogram graph?
A: Yes.

Q: Were you the one who produced the graph?
A: The photocopy is printed by the name there Adzeera on 27.07.2009 which was wanted by the prosecution and the defence counsel but the one that I derived my conclusion is printed on 19.07.2008.

Q: Did you compare the electro-phoreogram graph with your copy?
A: Yes. And it is the same.

Q: On the date when you printed out your copy, was the machine in good working order?
A: On the date I printed the graph, the machine was in good working order. However when it is done and produced, whenever you printed it out again, it will give always give the same profile.

NB: May I have this electro-phoreogram graph as well to be marked as ID 63, YA?

Electro-phoreogram graph from the sam ple examined by Aidora is marked as ID 63.

Q: We cross-refer the appendix (I) of your ID61 and the electro-phoreogram graph of ID63. We go to page 1 of ID63. Please tell the court, which samples does the electro-phoreogram graph refer to?
A: Number one, 6334/08-3 refers to the laboratory number. Marking “D” refers to the hair.

NB: The hair is ID57A, YA.

Q: What is the result here according to the electro-phoreogram graph?
A: As you look at the graphs there are no peaks there indicating no DNA was detected. So, there is no DNA profile produced.

Q: Page 2.
A: Again, 6334/08-3 refers to the laboratory number. “D2(a)” refer to the hair that I found on the towel “D2”.

NB: YA, that would be ID60B.

Q: And what is the result according to the chart?
A: As you can see there is small peaks here but it is not conclusive therefore no DNA profile were detected.

Q: Lets go to page 3.
A: Page 3, it’s written there blank done on the hair. Blank of the hair mean [whenever we do DNA extraction of any samples we run with the reagent blank which is subjected to the same procedure but just without the hair to ensure there is no contamination to ensure that the extraction method throughout are done in the correct manner. As you can see on the blank there are no DNA profile which means the hair when it was don ethere is no contamination as well.

Q: Is this one of the quality control that you exercised in your lab
A: Yes, it is.

Q: Next.
A: 6334/08-3 refers to the laboratory number. “D1” refers to the exhibit which is the white toothbrush. (a) refers to the area which I swabbed, on the handle.

Q: You did 2 swabbing, at the handle and at the bristle.
A: Yes.

Q: Page 4 is the bristle?
A: It is the swabbing for the handle of the toothbrush. Page 5, 6334/08-3 is the laboratory number, “D1(b)” refers to the swabbing I did on the bristle of the toothbrush.

NB: Page is is ID58B, YA.

Q: Now we go to page 6. What does it refers to?
A: Page 6 refers to 6334/08-3 which is the laboratory number. “D2” is the towel. As I informed the court earlier on, I swabbed the towel into 4 different parts which I labelled as “D2(b)”, “D2(c)”, “D2(d)” and “D2(e)”. Therefore the electro-phoreogram graph on page 6,7,8 and 9 all are from the towel D2.

Q: So, the electro-phoreogram graph on page 6,7, 8 and 9 refers to ID59A consisting of four different area that you swab on the towel?
A: Yes.

Q: Lets look at page 9. This will be the towel, one of the area on the towel that you swabbed. The towel is marked ID59A. In this graph, is there unaccounted allele from this graph?
A: Yes. At locus D3S1358. There’s 3 alleles, 15, 18 and 19. In my report, on D3S1358, I did not report allele 18 there.

Q: Allele 18 here is considered as uncounted allele and you did not report it?
A: Yes.

Q: At locus D3S1538?
A: Yes.

Q: Why didn’t you report this allele?
A: Based on the RFU of the entire profile, the profile is still consider traced DNA which means small amount of DNA. Allele 18 is the stutter peak of allele 19. The stutter peak range occurs usually 15%-20% of the actual peak height. Allele 18, the peak height is 77 and allele 19, the peak height is 306. If you do the calculation mathematically, probably it will be more than 20%.
However, you have to understand that this is traced DNA, therefore[] amount of DNA. When it comes to low level of smaller level of DNA, the stutters occurances tend to be higher or more enhanced than the normal DNA. This can be found in most published journals. Therefore I did not report it.
Just for the court’s knowledge, stutter is one repeat unit smaller than the actual peak. In this case the actual peak is 19 and the stutter is 18 which is one repeat unit lower.

Q: I’ve asked this form Dr. Seah. Perhaps you can repeat it. What is the reporting threshold for allele?
A: The reporting threshold is 50 RFU.

Q: We go to the next page.
A: Page 10 will be 6334/08-3. D3(a). D3 refers to the mineral water bottle.

NB: ID61A, YA.

A: I’ve informed the court that I did 2 swabbing on the bottle. D3(a) refers to the mouth and inner side of the bottle.

Q: What about the other part? The handle?
A: It is D3(b) at page 11.

Q: What about page 12?
A: Page 12 is for the blank which is for the trace. This sample is different from hair because it is traced DNA. Therefore due to our quality assurance, we have to do a reagent blank for it. This is the reagent blank that is being done together with the traced swabs, just that it is without the swabs. As you can see that there are no contaminations there, it’s really no DNA there. Therefore it is quality assured that the extracted DNA and the DNA profile are free from contamination.

Q: Page 13 and Page 14? Is this called the allelic leather?
A: Page 13 and 14 is the allelic leather. Basically the allelic leather contains all the know repeats unit that exist in this 15 unit STR loci and of course anmelogenin is is X,Y, it’s either male or female. And this allelic leather is used for the instrument to see the number or the allele of these samples.

Q: For page 15, what is it?
A: The reagent blank is done during the extraction and followed through until amplification where you can see the results right now. The negative control is introduced during the amplification steps just to ensure that if there is contamination then you’ll be able to see. Again, quality assurance to ensure amplification is done correctly. If you can see that the negative control has no DNA profile, therefore it is of authentic negative.

Q: Page 16?
A: On page 16, you have the positive control. Again, introduced during the amplification step together with the reagent blank and the sample to ensure that the amplification and the running of the instrument, everything is correct. This DNA profile of the positive control is known to be compared with the manufacturer known controls to ensure that it is correct. This controls was okay, meaning that the results and the instrumentation were all in working order and no contamination at all.

Q: This is the summary of your STR result. You can confirm again that you managed to obtained DNA profile from the exhibits?
A: Yes.

Q: And, can you also confirm that the profile of this DNA belongs to a male?
A: Yes. Because the anmelogenin is X,Y.

Q: We are done with the electro-phoreogram graph and the STR result. We’ll come back later. When you were not conducting the test, where were the items kept?
A: In the chest freezer.

Q: The same chest freezer you mentioned earlier?
A: Yes, it was kept in the chest freezer that was mentioned initially.

Q: When you are not conducting the examination and analysis, have you ever left the exhibits unattended?
A: No.

Q: Was there anyone assisting you on the examination of this exhibits?
A: No. The examination was done by me alone.

Q: Once you have completed your examination and analysis, what did you do with the exhibits?
A: Once I’ve completed my examination and DNA analysis, I checked again the exhibits whether it is in order, then I placed it back in the envelopes and the hair which is found on “D2” is put in another envelope which is my envelope and all these envelopes are sealed with my own seals which is Jabatan Kimia Malaysia security label, initialled and placed back in the plastic packet, heat seal and initial on the heat seal and kept into the strong room while awaiting for the police collection.

Q: When did you returned the items to the IO, DSP Judy Blacious?
A: The items and 3 copies of my report was given to DSP Judy Blacious Pierera on 22.07.2008 at 2.15 p.m.

Q: What was the condition of the seals on those items when you handed them over to DSP Judy?
A: The seals are all intact, the envelope are heat seal and my signature is till there.

Q: After you have completed your examination and your analysis, subsequently were you shown report made by Dr. Seah?
A: Based on the POL 31 and police request that my results were to be compared the report generated by Dr. Seah Lay Hong bearing PJ laboratory number 6334/08-0 and (PJ) FOR 6334/08-2 dated 07/07/2008. I obtained a copy of Dr. Seah’s report from my Ketua Seksyen which is Mr. Lim Kong Boon.

NB: May I refer the witness to P25, YA?

Q: Please look at P25. Is this the report of Dr. Seah Lay Hong that you received from Lim Kong Boon that you were asked to compare with your report?
A: It is the same copy except that I don’t have the toxicological report. Others are the same copy as per I have.

Q: And what was your finding on the comparison made by you?
A: On further comparison of the DNA profiles obtained by me and the DNA profiles reported by Dr. Seah Lay Hong in the Department of Chemistry Malaysia report (PJ) FOR 6334/08-0 and PJ FOR 6333/08-2 and dated 07/07/2008, I found the DNA profile developed from the toothbrush “D1”, towel “D2” and bottle “D3” to match with the DNA profile attributed to the unknown contributor male Y in her report, thus indicating that the DNA identified originated from the same source.

Q: Did you state this in your report?
A: Yes, it is stated in my report.

Q: You said in your report as well as in your testimony in court today that the DNA profile developed from the swabs toothbrush, the towel and the bottle, you said to matched the DNA profile of the unknown contributors male Y in Dr. Seah’s report. Did you conduct a match probability?
A: Yes, I did conduct a match probability.

Q: How did you conduct it and what was the result of the match probability?
A: Department of Chemistry Malaysia has a DNA profile of population database on the major ethnic groups of the Peninsular Malaysia namely Malay, Chinese and Indian. Based on the anmelogenin and the 15 STR loci as per I have told before. And this population database were then put in a statistical software which is developed by Dr. Charles Berner as called the DNA view. And I did a match probability and the match probability is…

KS: YA, this document has not been supplied to us.
YA: They are not producing it. They are referring it to refresh the memory.
NB: We are not tendering the document. We are taking it from the oral .evi of this witness.
KS: But the document is being used…
YA: Yes, but to refresh the memory.
NB: She’s refreshing her memory. She can refer to her notes.
RK: But this evidence is based on the document. The evidence she proposed to give now would be based …
YA: This is oral evidence but to refresh her memory she refer to the document. They are not referring to the document .
RK: I think under S.51 A, YA.
SN: S.51A, YA.
MY: [] just like the pro forma that Dr. Siew refresh his memory to answer question and to [] and the court accepts.
SN: This is the same as P25 where it is supplied under S.51A.
MY: I mean even from the previous chemist, those document were never given.
YA: Unless there is further submission. Parties want to give submission or what?
KS: I think we have to, YA.
YA: Yes. You are objecting for?
KS: YA, S.51A talks about the document that is intended to be used and tendered by the prosecution. It is now being used. As simple as that. It is being used. And thus it must be supplied to us before the commencement of the trial under S.51A. And S.51A is the provision which is mandatory. The case in point is DSAI case itself []. We will supply it to your Lordship after lunch.
That document is intended to be used. I think is very significant. The use of it at this time would [] unless it is supplied to us []. Refreshing memory doesn’t arise. It is being used for the purpose of giving evidence, not to refresh memory. There’s a difference.[].
RK: YA, also if I may add on to KS submission. The fact that this match probability that this witness is about to give evidence on is not part of her report although she has given oral evidence in relation to it. I can’t see it in the report, unlike the report P25 of Dr. Seah where at page 3 (i) she has stated “ the probability of a coincidental match from a randomly selected, unrelated individual…”.
In another words, there is evidence on the report of Dr. Seah’s of the match probability. In other words, this witness is adding on to her report now. This is oral evidence which is being added on to a report that is necessary to be reduced into writing under the law and supplied to us.
In other word I would like to add further that the oral evidence of hers is [] contravention to the Evidence Act pertaining particularly to to S.91 which prohibits contradictory oral evidence to a document required to be reduced into writing by law. That is the second part of the submission. Of course the first is S.51A as submitted by my learned friend, KS.
From those two grounds, the oral evidence ought to be rejected and on top of that secondly the document which she is referring to now or she is using now [].
MY: My Lord, as your Lordship has pointed out that S.51A is for document to be tendered and in this particular regard we have supplied the counsel with ID62. Today this particular witness had from time to time ask permission from this court to refer either to her report or to notes to answer questions. In fact, I’m surprised all this while my learned friend will be asking the witness to refer to notes. [].
This witness has stated in her report, ID62 on page 2 that she has made the comparison [] and I found it to be necessity, similar to the profile attributed to the unknown contributor named as “male Y” []. What being asked now is how did she arrived and she has to refer to her notes. And as far as the notes are concern, S.159 Evidence Act applies and it is open for my learned friend to access to the notes and observe the notes and question later on.
With regard to S.91 and S.92 I think the celebrated case of Dato’ Harun Idris [] says that S.91 and S.92 prohibits explanation with regard to []. It doesn’t apply to this, if there is contradiction. Here, I don’t see any contradiction. What my learned friend is saying there is an omission on the match probability test. An omission cannot be a contradiction.
With regards to her reference as to what Dr. Seah is saying, the witness now is looking at her own graph. She mentioned about two profiles from two different sources, the one that is profiled by Dr. Seah and the one that she profiled.
I did not see at this point of time how S51A CPC applies neither I can see S.91 and s.92 Evidence Act applies. Because notes are not something which the law requires to be reduced into writings. Kit doesn’t belong to that category of document. Report, yes. But not the worksheet all that. But of course in this particular case, it is referred to because she has wrote down all that but that is not the class of document or categories of document which the law in S.91 or S.92 [].
I urged your Lordship to allow this witness to answer and if necessary to order the witness to make available the notes. For the court’s record, neither the prosecution had any access to the notes. We don’t have the reports. []. We have the report, acknowledgment receipt and the electro-phoreogram. So whatever the defence have, we have. Nothing more, nothing less.
KS: It is necessary for us to look at the document being used.
YA: They have the right.
MY: Yes. I have no objection to that.
KS: The point we are making is this, she is not refreshing memory. She is using that document. And S.51A is very clear. Any document that is intended to be used by the prosecution is being used now. Refreshing memory has limited purposes []. That’s not the purpose of S.159 otherwise the witnesses will come to the court and read document. That is not refreshing memory. At this stage, it is a document which falls under S.51A. It ought to be excluded. The authorities mentioned just now make it mandatory for the document to be supplied to us.
MY: YA, just like when you asked Dr. Siew, what is the i/c number of Saiful. I mean he can memorize it and have to read it correctly. If I may just read both S.159 and S.160 Evidence Act. [Read s.159 and S.160]. What it says is that []. S.160 says that you can testifiy from the content if you know it to be correct, she is the one who prepared the notes. She won’t be able to memorize all. S.160 says she can testify from the document.
YA: So your intention now is for her to compare the match probability?
MY: Yes. Because she said she compared it, how is she going to come to conclusion on page 2 of the report since she did the match probability test. []. Because I’m sure if we don’t ask, the defence will ask. []
SN: It is not simply a pro forma.[]
MY: It’s not fair. I thought when he ask for the document, he agrees that it refers to S.159 []. You cannot have a look now and says “I still have objection”.
KS: Our objection is under S.51A. It is as simple as that.
YA: I’ve heard enough from both sides. So, we start at 2.30.
[12.53 p.m.] stand down.

[3.10 p.m.]
KS: In view of the [] made by my learned friend regarding with the supply of document, we are not proceeding with the objection [].
MY: I confirm that, YA.
YA: So, can we proceed?

Sambung pemeriksaan utama SP6 oleh NB.

Q: We stopped at the match probability that you done. What again is the match probability that you have done on this sample male Y when you compare with the profile reported by Dr. Seah?
A: The match probability of a randomly selected unrelated individual to have a matching profile at this 15 STR loci is approximately in 1 in 470 quintillion (470×10 of the power of 18) to be calculated based on the Malaysian population database of Malay race. 1 in 52 quintillion (52×10 to the power of 18) as calculated based on the Malaysian population database of Chinese race. 1 in 210 quintillion, (210 x 10 to the power of 18) as calculated based on the Malaysian population database of Indian race.

Q: The document that you referred to, what is that document?
A: DNA view statistical calculation.

Q: What is the content of the DNA view statistical calculation document?
A: It consist of the DNA profile that I obtained, the alleles, what are the frequencies, and what are the probabilities.

Q: If you were not to refer the document, you’ll not be able to come out with it?
A: I did not memorize the figures.

Q: That document is the same as reflected in the DNA view software?
A: Yes.

Q: You made the DNA view statistical evaluation to see the probability match.
A: Yes.

Q: If you were to based on the summary of both STR result alone, can you also come to the conclusion that the source of male Y comes from the same origin?
A: Yes, I can.

Q: Did you do comparison between your STR result with Dr. Seah’s STR result?
A: No. I did the statistical evaluation based on the DNa profile I made.

Q: That is on the comparison on the probability match. On comparison of profiles, can you based it on the STR results?
A: I compared the STR result of the profile that I obtained with that of Dr. Seah’s .rpt that is supplied and I come to the conclusion that the common DNA profile that I obtained from the swabs of the toothbrush D1, towel D2 and bottle D3 to matched with the profile attributed to the unknown contributors of male Y in Dr. Seah’s report indicating it originate from the same source which is known as common origin .

NB: YA, itu sahaja soalan saya.
RK: YA, we’ve just been given with the document. During lunch, I’ve discussed with my expert who informed me that certain things could be done with regard to this document. But I need some time to look out for other sources to see whether I can challenge it but I don’t have at this time.
MY: I don’t have objection if my learned friend require some time to decide whether to use this document or not. What I propose and I’ve spoken to KS, if your Lordship is allow not to continue with the cross-examination of this witness today or tomorrow. What we propose is the prosecution will call other witness so that RK can go through the document and discuss it with their expert so that tomorrow we’ll still have witnesses to examined.
YA: Tomorrow we’ll continue with some other witness until they are ready to cross. I expect RK to be ready with your cross on Friday morning. Saksi, Pn. Aidora esok tak payah datang. Datang hari Jumaat. So, petang ni? Adjourned till tomorrow.[3.21 p.m.] Adjourned.

[11.48 a.m.]YA: Berkenaan permohonan peguambela semalam, S159, I agree that S.159 talks about refreshing evidence while under examination. The question is whether the word “while under examination” includes circumstances while the court is during recess. To my mind it is. Because to conclude otherwise would cause injustice because the witness could look at whatever it is and to deny the right of the defence under S.160 of Evidence Act. Therefore, I allow the defence application for the pro forma to be produce and shown to the defence according to S.159.
As regards to the application of SP3 for contempt and direction for investigation to be conducted against SP3 for the reason of interfering with the justice, I’m of the view what was done by SP3 is neither calculated to interfere with the course of the justice nor would he be held for contempt or to be investigated under the Penal Code. So, application for contempt is dismissed.

MY: My Lord, I seek clarification. Some question were post to the witness which he could not answer. Nothing very material but with regards to i/c number of …

YA: Now what is it that you are trying to say?

MY: Do we need to make available everything?

YA: That is what he said,. He said he referred to the pro forma.

MY: He did not refer to the whole thing before he answered any. That is my problem. S.159…

YA: But as far as my ruling is concerned, he said he refer to the whole pro forma.

MY: So that’s why I’m seeking your Lordship’s clarification. S.159 talks about witness referring to a particular part or the whole part of a particular document in answering question. He has not referred to any during examination. And when he turn up, no question were being asked as regards to what he referred.

YA: Whatever it is, it is my ruling. The pro forma is to be made available to the defence.

MY: We will accept that.

KS: We want it now.

MY: He said it is in his possession, so I take it he has it. We don’t have it.

YA: Panggil saksi.

MY: YA, saksi dalam toilet.

KS: Perhaps he is refreshing his memory in the toilet.

KS: Meanwhile YA, we have this issue to disqualify your Lordship.

YA: In the meantime we can continue to examine SP3 until the application is being filed.

KS: Precisely. It would not be proper for us to proceed with the cross-examination of SP3 as there is this application to disqualify your Lordship.

YA: We still can proceed.

KS: Inconsistent. I don’t think we can do that. We should do something that []. We cannot say in one breath that your Lordship should be disqualify and continue with the trial.

MY: My stand has always been this, my Lord. Until the application is before the court, we should proceed at least with the cross examination.

KS: We can’t do that. It is not proper. It is our right to have your Lordship recused.

MY: Then there’s no point.

KS: We can’t do that.

MY: Can we stay the order?

KS: It doesn’t matter if we get it or not.

YA: So you don’t want to proceed with the cross-examination of the witness?

KS: We ought not to.

MY: As I have indicated to my learned friend just now, in case the original is shown to him he may want copies to be made. Copies are also to be made for me. Perhaps we need 3 copies for cross reference also.

KS: In view of the development of the stay we are unable to proceed with the cross-examination of this witness. We’ve filed just now my Lord, a notice of motion supported by the affidavit of DSAI seeking the recusal of your Lordship from further hearing this trial. We’ll give the reasons in details tomorrow morning, my Lord when the matter comes for hearing tomorrow morning.
The ground is this, my Lord. Yesterday 23rd of November 2010, your Lordship has intimidated the counsel that is me and therefore DSAI has serious concern that he will get a fair trial if your Lordship continue presiding in this trial. DSAI is entitled to a fair trial and with regards to Article 151 of the Federal Consitution and that being the position it will be inconsistent for us in the face of this application asking for your Lordship recusal to proceed with the cross-examination. Inconsistent. Inconsistent. This cannot be done. And we don’t intend to do it.
I see that the date for the application is for tomorrow morning.

YA: It’s today.

KS: Oh, today. In the afternoon. We are asking for tomorrow morning. We intend to prepare this case fully and properly. As I said earlier, the ground and the law will be adverted to in detail when this matter comes up tomorrow, and not this afternoon. It ought to be tomorrow. Gives us time.
We have given your Lordship notice yesterday that we are going to file for an application to recuse your Lordship. We have to be in the Federal Court together with DSAI this morning to get the decision. In fact we stay up until 1.00 a.m. last night to prepare the notis usul and the affidavit. For that reason we need more time until tomorrow morning to do the getting up and come here well prepare to recuse your Lordship from further hearing this matter.
I have nothing further to say, my Lord. Much more will be said tomorrow morning.

YA: MY?

MY: YA, I really do not know how to respond to this application.

KS: Very simple.

MY: No objection? No. I believe that until the application is heard and we deals with the merits of the application, all this what has been said are mere conjecture. That’s an interpretation of your Lordship. That’s all. I do not wish to say anything further but the case has been fixed for so many days and yesterday we only had less than 10 questions asked before we adjourned. And also today. My concern is only that. I can understand the predicament. It is true it is not inconsistent where on one hand they are saying that you shouldn’t be hearing this until we dispose of the application and at the same time we come here to get only 5-10 minutes of the cross-examination of the witness. But if the court is mindful to grant stay or to postpone to tomorrow, may I apply to this court to excuse SP3 from attending the court tomorrow because he needs to be in the court in Terengganu. The case has been fixed for a week and tomorrow is the last day of the hearing. And I’ve spoken to the Judge requesting for him to have this witness tomorrow or at least this afternoon so that we can finish with the witness. That’s all.

YA: So you contemplate that tomorrow the application will take the whole day?

MY: I think the hearing of the application proper should be done by noon. And your Lordship may need time to make your ruling. But in any case, I don’t think that this witness is able to fly in to Terengganu and come back at time tomorrow morning because he is to testify there. I’m sure the counsel there will have a lot of questions just like KS. So unless we can proceed with this witness this afternoon, I would request for the appearance of this witness to be dispense for today and tomorrow.

YA: We agree that we are unable to proceed with the trial.

MY: Yes, it’s inconsistent. We accept.

KS: Then my learned friend should not object to our application.

YA: He is not objecting. He is voicing out his concern. Kita sambung besok la. I’ll hear the application tomorrow.

YA: In reference to Counsel’s request yesterday, S159, I agree that S.159 talks about refreshing evidence while under examination. The question is whether the word “while under examination” includes circumstances while the court is during reccess. To my mind it is. Because to conclude otherwise would cause injustice because the witness could look at whatever it is and to deny the right of the defence under S.160 of Evidence Act. Therefore, I allow the defence application for the pro forma to be produce and shown to the defence according to S.159.

As regards to the application of SP3 for contempt and direction for investigation to be conducted against SP3 for the reason of interfering with the justice, I’m of the view what was done by SP3 is neither calculated to interfere with the course of the justice nor would he be held for contempt or to be investigated under the Penal Code. So, application for contempt is dismissed.

MY: My Lord, I seek clarification. Some question were post to the witness which he could not answer. Nothing very material but with regards to i/c number of …

YA: Now what is it that you are trying to say?

MY: Do we need to make available everything?

YA: That is what he said. He said he referred to the pro forma.

MY: He did not refer to the whole thing before he answered any. That is my problem. S.159…

YA: But as far as my ruling is concerned, he said he refer to the whole pro forma.

MY: So that’s why I’m seeking your Lordship’s clarification. S.159 talks about witness referring to a particular part or the whole part of a particular document in answering question. He has not referred to any during examination. And when he turn up, no question were being asked as regards to what he referred.

YA: Whatever it is, it is my ruling. The pro forma is to be made available to the defence.

MY: We will accept that.

KS: We want it now.

MY: He said it is in his possession, so I take it he has it. We don’t have it.

YA: Call the witness.

MY: YA, the witness is in the washroom

KS: Perhaps he is refreshing his memory in the toilet.

KS: Meanwhile YA, we have this issue to disqualify your Lordship.

YA: In the meantime we can continue to examine SP3 until the application is being filed.

KS: Precisely. It would not be proper for us to proceed with the cross-examination of SP3 as there is this application to disqualify your Lordship.

YA: We still can proceed.

KS: Inconsistent. I don’t think we can do that. We should do something that []. We cannot say in one breath that your Lordship should be disqualify and continue with the trial.

MY: My stand has always been this, my Lord. Until the application is before the court, we should proceed at least with the cross examination.

KS: We can’t do that. It is not proper. It is our right to have your Lordship recused.

MY: Then there’s no point.

KS: We can’t do that.

MY: Can we stay the order?

KS: It doesn’t matter if we get it or not.

YA: So you don’t want to proceed with the cross-examination of the witness?

KS: We ought not to.

MY: As I have indicated to my learned friend just now, in case the original is shown to him he may want copies to be made. Copies are also to be made for me. Perhaps we need 3 copies for cross reference also.

YA: We stand down for a while.

[11.55 a.m.] Stand down

[12.25 p.m.] Parties enter Judge’s Chambers.

[12.51 p.m.] Parties exit Judge’s Chambers.

[12.59 p.m.]

MY: Continuance of case for cross-examination of SP3

KS: In view of the development of the stay we are unable to proceed with the cross-examination of this witness. We’ve filed just now my Lord, a notice of motion supported by the affidavit of DSAI seeking the recusal of your Lordship from further hearing this trial. We’ll give the reasons in details tomorrow morning, my Lord when the matter comes for hearing tomorrow morning.

The ground is this, my Lord. Yesterday 23rd of November 2010, your Lordship has intimidated the counsel that is me and therefore DSAI has serious concern that he will get a fair trial if your Lordship continue presiding in this trial. DSAI is entitled to a fair trial and with regards to Article 151 of the Federal Constitution and that being the position it will be inconsistent for us in the face of this application asking for your Lordship recusal to proceed with the cross-examination. Inconsistent. Inconsistent. This cannot be done. And we don’t intend to do it.

I see that the date for the application is for tomorrow morning.

YA: It’s today.

KS: Oh, today. In the afternoon. We are asking for tomorrow morning. We intend to prepare this case fully and properly. As I said earlier, the ground and the law will be adverted to in detail when this matter comes up tomorrow, and not this afternoon. It ought to be tomorrow. Gives us time.

We have given your Lordship notice yesterday that we are going to file for an application to recuse your Lordship. We have to be in the Federal Court together with DSAI this morning to get the decision. In fact we stay up until 1.00 a.m. last night to prepare the notis usul and the affidavit. For that reason we need more time until tomorrow morning to do the getting up and come here well prepare to recuse your Lordship from further hearing this matter.

I have nothing further to say, my Lord. Much more will be said tomorrow morning.

YA: MY?

MY: YA, I really do not know how to respond to this application.

KS: Very simple.

MY: No objection? No. I believe that until the application is heard and we deals with the merits of the application, all this what has been said are mere conjecture. That’s an interpretation of your Lordship. That’s all. I do not wish to say anything further but the case has been fixed for so many days and yesterday we only had less than 10 questions asked before we adjourned. And also today. My concern is only that. I can understand the predicament. It is true it is not inconsistent where on one hand they are saying that you shouldn’t be hearing this until we dispose of the application and at the same time we come here to get only 5-10 minutes of the cross-examination of the witness. But if the court is mindful to grant stay or to postpone to tomorrow, may I apply to this court to excuse SP3 from attending the court tomorrow because he needs to be in the court in Terengganu. The case has been fixed for a week and tomorrow is the last day of the hearing. And I’ve spoken to the Judge requesting for him to have this witness tomorrow or at least this afternoon so that we can finish with the witness.That’s all.

YA: So you contemplate that tomorrow the application will take the whole day?

MY: I think the hearing of the application proper should be done by noon. And your Lordship may need time to make your ruling. But in any case, I don’t think that this witness is able to fly in to Terengganu and come back at time tomorrow morning because he is to testify there. I’m sure the counsel there will have a lot of questions just like KS. So unless we can proceed with this witness this afternoon, I would request for the appearance of this witness to be dispense for today and tomorrow.

YA: We agree that we are unable to proceed with the trial.

MY: Yes, it’s inconsistent. We accept.

KS: Then my learned friend should not object to our application.

YA: He is not objecting. He is voicing out his concern. We continue tomorrow. I’ll hear the application tomorrow.

KS: The first issue is [] report. That is for YA to reopen the ruling you made yesterday that we are not entitled to the notes recorded by SP2 in the course of the examination of SP1. We have relied heavily on the case of DSAI, what the Federal Court has to say is with regard to the difference between the discovery during pre-trial and during the course of the trial. The Federal Court has stated that although we are not entitled to certain of the documents, or rather under S.51 of Criminal Procedure Code, nevertheless the matter could be taken up in the course of the trial. We relied also on Pannerselvam in relation to Section 157 Evidence Act 1950. There of course is an application by the prosecution to lead evidence of the former statement to corroborate the evidence of undercover agent of that case. The court held that the evidence or rather
the former statement of the witness could be use to corroborate. The witness given in the court, we have try to convinced to persuade YA to consider the reverse of it whether statement is conflicting with the evidence given by witness in court.
In relation to review of the ruling made by YA. Your Lordship has relied very heavily on the submission of my learned friend, in fact you agree with him that the notes will only be made available if the witness chooses to refresh his memory in the course of his evidence. Where alone that part of the former statement by the witness, in this case would be the notes recorded. YA has relied very heavily on that. YA is of the view that unless and until the application is made by the prosecution for the witness to refresh the memory, we have no right to look at or ask for the protection of the notes recorded by SP2 in the course of examination of SP1. YA is not functious officio. The ruling made by a judge in the course of the trial can be reviewed. Of course it is persuasive. It is for the court to reconsider because reconsideration must come now.
Lets go to the basic. SP2 is an expert. We’ve been told by the prosecution that he is an expert. An expert is not a witness of fact. The evidence of an expert is advisory in nature. An expert come to the court is for the purpose assisting the court for certain conclusion. Because the court istself is not in position to do so when we comes to the evidence of the court. We say a very wide latitude is given to the court and to the defence.
We refer to the case of State Utapradesh v Jayaratnam & Others. I’m unable to get the report proper. The citation here is cited in and it is digested in the Mallal Digest, 7th volume under tab 1 evidence act. [read text]. It is important. [continue reading]. The reasons are in P22, but it is a data that furnish the basis for conclusion. In order to bring the evidence of an expert witness, it has to be subject or shown that the witness has special studies on the subject, likewise special experience of him. That is adequate knowledge of his subject. The report submitted by expert is not admitted automatically. Report submitted by an expert cannot be admitted arbitarilly. P22 cannot goes into evidence automatically. It should be examined and cross-examination in court. Based on this authority the defence in cross-examination advert to and demand the supply of the material and the data upon which P22 is based. And even if the defence is not entitled to the material, then the court is. Your Lordship should demand it. We give you the expert to furnish your Lordship scientific criteria the data upon which P22 is based.
In fact, your Lordship would be abdicating your duty and if your Lordship sits back and does nothing about it, we are prepared to accept what is in P22 without our [] part. The court is obliged to demand the data if we are not entitled to it. But we are saying we are entitled to it. In fact the judge and the defence must joint force to ensure the truth prevails. It’s subject to us to persuade your Lordship to review the ruling made by this court yesterday. Unfortunately, I’m not able to address your Lordship of the actual report. I’m still loking for it. It is a Supreme Court case in any event. Supreme Court of India, although it is not binding on this court it is of highest persuasive value.
In fact it has been accepted most of the time. Although the Federal Court in Karam Singh had the occasion to say that the Indian judges are idealist. The judge has to be an idealist. Of course Karam Singh is a case involving habeas corpus. It’s quite different here Put that aside. We say that it is an authority that should prevails. In fact, to document produces yesterday surreptitiously because it was not served on us. The toxicology report which are attached…

YA: It is the second issue?KS: Yes. The toxicology report which was attached to P22, which is never been served on the defence.MY: It’s ID25.KS: ID25. I think it was attached to P22 because I questioned the witness and it was there. He said it was there. In fact, it was adverted in P22, if I can put it that way. [] The law is very clear. The amendment to the Criminal Procedure Code brought S.51A. It is fondant duty of the prosecution to supply to the defence before the commencement of a criminal trial. All the documents which they intends to use in the course of the trial to prove their case. It is not disputed that the toxicology report has never been served. And that has been accepted by my learned friend unless he wants to change now. That is the position. We said that the document cannot be used for any purpose whatsoever. It is inadmissible because it is not supplied to us in compliance of the provisions of S.51A. Because not before the commencement of the trial. It suddenly appears. And what is more intriguing is this, it is your Lordship who pointed it out to us.

And this is a critical stage where we are contradicting the number of chemist report that are refered to in the conclusion in P22. And suddenly this document is was drawn to the court. This document cannot be used even later on for the purpose of admitting it as evidence. S.51A itself or rather the provisions of S.51A are as clear as a bright star. Any document intended by the prosecution to be used in the trial to prove their case, it’s mandatory that a copy must be served on the defence. My learned friend of course will rely on the case of Mohd Fadzil Awaluddin. We found that the issue in that case which is a High Court case, an authority which is not binding on your Lordship, the authority which does not support our case. We’ll come to that later on. J Mohd Zawawi says the non-compliance of S.51A did not make a trial a nullity. [read holding 1]. Non-compliance of S.51A is not a statutory bar for the prosecution. This is a case in favor of the prosecution. [continue reading]. There is a case in favor of the prosecution.

We have a case of PP v Lee Sook Hua. In this case the learned judge J Yaacob Sam in his judgment went at length into the same issue, and that is at page 55, under para 111 [] And the conclusion is made at para 114 at page 56. [read]. That is another word what is said in Mohd Fadzil Awaluddin. We have two High Court decision where the effect of S.51A is directory and not mandatory. The provision of S.51A are directory and not mandatory unless prejudice is shown and therefore the prosecution is under duty to produce it in the course of the trial. But we rely on what is said in the case of DSAI. This is what the Federal Court has to say. I refer para 28, page 324. I read it. [read]. In this case, the toxicology report is part of the prosecution case. The point is this YA, is the report admissible? We say it is not because it is not served on us before the commencement of the trial. The court says it very clearly that s.51A make it a mandatory obligation on the prosecution to comply. We say that the other two cases we referred earlier stands to be demolished in the face of what the Federal Court says in the case of DSAI. There’s a High Court case which in fact applied the principles set out by the Federal Court case. The case of Lee Le Cheong v PP. It’s in the High Court of Sabah and Sarawak in Kuching. [read headnotes]. In this case, it would be a document. But it is the same. The requirement is the same. We have ….

YA: What’s the fact of this case?KS: That is the non-suppliance of document which is required to be use by the prosecution []. The case applied the principles in DSAI’s case, the Federal Court decision. In other words it is mandatory to supply to the defence, the copy of the statement is made available to the defence. Apart from that, supply of the whatever document what the prosecution intend to use, it is a requirement that the document ought to be made known to the defence. My learned friend may say in DSAI case what the Federal Court said is obiter dicta. No doubt that the point did not arise pointedly.YA: I think it is mandatory to supply the document before the commencement of the trial.KS: Of course if it is mandatory it would be supplied before the commencement of the trial..YA: Cannot be.KS: Of course, it would be automatically followed. Must follow. And to be followed. It cannot be produce in the course of the trial. And that in our case would be rendered inadmissible. Also, even if it is obiter, what did the court said? The highest court of the land, and not to be likely brushed aside, YA judge of the High Court. In many event, it had been applied by another High Court. The case of Lee Lu Cheong, which I refer just now. The prejudice is the consequence. This document had been surreptitiously used in the course of this trial. It is pointed out to us by your Lordship. The prejudice is inherent in itself. [] The point is this, whether P22 notes stand contaminated to the extend that it ought to be excluded. We have been denied the legitimate right to contradict the evidence of SP2. Where P22 did not reflect the toxicology report as far as we are concern, because we have not being supplied with it, but the witness kept saying that he had it. Your Lordship should stick to us. P22 stands discarded and of no consequences, what we have is the evidence of the witness in this court. The law is trite. That evidence of the witness does not reflect of P22. P22 would be corroborative of the evidence given in court by SP2. But then again. He, or rather SP2 has not gives the notes, the basis, the data upon which he is coming to court under oath coming giving evidence.I come to the third issue. That is the principle in Husdi. This witness has time and again in the course of the cross-examination been evasive. What he says at various point make no sense. Even if he did, to some extent he refused, persistently refused to refer to the notes for the purpose of refreshing his memory. It is something to do with the motive, not to give the defence the opportunity to look at what he would at the notes to refresh his memory. Because if he did it, we would have the right. He denies that right persistently refuse. It is not proper for this court to say that you cannot do something about it. Of course YA can a lot of thing about it and you must do something about it. YA can’t sits bakc and says I cannot do anything. I refer your Lordship to what the Federal Court has to say in Husdi. Para F of the second page of the report, left column. [read]. S.145 and S.155 of the Evidence Act 1950 refer to any former statement made by the witness. any former statement made by the witness. can be use for the purpose of impeaching his credit. In this case the notes that he use, Husdi was 112 statement. And it makes no difference. We have a hunch. We have beyond the hunch. That if it is not produced, the evidence of SP2 in court would be contradicting from the notes.

YA: Because you know the process kalau mahkamah agree with you, he will gives the report first. Then court akan tengok ada material contradiction atau tidak. So you have a hunch of the history?KS: Yes. History is one part of it.YA: You have the hunch that the history ..

KS: That would be the case. Principally the history. The history as reflected in P22 is a two liner and it is not in details. To him there is no difference between a summary and what amounts to details. Even a child in a kindergarten would say that the two liner cannot be details. It is not about the history, it is much more than that. All we try to establish is the existence of a hunch, doesn’t matter which part is it. It is something that your Lordship ought to consider seriously. The other part, unfortunately we have not been given the notes. The notes of proceeding. If YA were to go to the notes seriously, this witness was evasive throughout, not only in this aspect, but other aspect. That’s it If I could summarize and it won’t be a 2 liner. The first issue, is we are entitled to the notes based on the Indian case I referred to. The witness is not a witness of fact but advisory to assist the court. I don’t want to repeat myself. We are entitled in cross-examination to demand the basis upon which the conclusion arise from P22. The reasons, the data whatever it is all that, we are entitled to all of them. If we are not entitled to it by cross-examination, your Lordship ought to invoke your Lordship powers to do so. The court can question the witness, not only the defence and the prosecution. The question you can demand is for the purpose of satisfying the conclusion of P22. It was done surreptitiously. If it has prejudiced your Lordship’s mind. P22 stands contaminated and required it to be completely expunged. Thirdly, the principle in Husdi. More than a hunch here. YA should take time to look at the notes apart from the history itself. It is not for your Lordship to say that it does not matter and can be submitted at the end. The evidence of the witness should not be accepted. I don’t think that is what counts. What important is whether the medical evidence can be accepted in this case. In any event my learned friend would wants to, he had refer me to the para 47 of DSAI’s case [read] There are 2 requirements, necessity and desirability. That refer to S.51. Whether it can be extended to the decision of this case. Lastly, most of the rulings made by this court when being brougth for appeal hads been turned down because it is not a final order. It means it is a very heavy responsibility on your shoulder. Your Lordship has monopoly in deciding. Each time we go there we have to come back here. YA should take time and gives us a proper details reason. With those remarks, and all those three issues, your Lordship ought to rule in our favor.

MY: My Lordship, basically there are two issues. First the entitlement of the defence to the notes of examination, plus the history taken on the patient, SP1. And number two, the admissibility of P22. with regard to the entitlement or the rights to the notes of examination, my learned friend is relying on s.51. In the case of Raymond Chia, what the Supreme Court says is this. In the course of the trial, when application is made for the documents, then the rule, the rule of relevancy must be strictly observed. What does that mean? The case of Ramasami. In the case of PP v Ramasami, tab 13, J Su Geok Yiam had the opportunity to refer to Sarkar to say when we talk about what is relevant, we talk about what is admissible. What I mean is what is legally admissible. I refer to page 419, para D, para E, para H, para I [read]. Taking this argument from this passage, the notes of examination or whatever report is not admissible. The author or the person who make such report for such examination is present in court to give evidence. If I may refer to the same case of Saw Thean Tiek v Regina, tab 11. Because Ramasami sais this – since the report was not served under Section 399 and the prosecution decides not to tender the evidence, then the defence cannot have access to it. []. The reason why [] when you talk about what is relevant in Raymond Chia [] . Sarkar said with regard to Section 3 the word relevant is what is admissible. The general rule is that when the person or the doctor gives evidence in `court, his report is not legally admissible. Because of the best evidence rule. If I may refer to Saw Thean Tiek, tab 11, page 125, second paragraph, 17th line [read], page 126 [read] The best evidence rule will exclude any medical report or any notes of examination unless the party wishes to use it as corroboration evidence. The position in India is different. We are talking about the same particular situation, but in India, when I read the literature it does not talk about it to be admitted as corroboration. You can only use it to refresh your memory. I invite your Lordship to tab 23, under the heading of “refreshing memory”. Page 2468, under subheading “post mortem notes”. Because I look at Criminal Procedure Code and go through the literature, there was no cross-reference made to Section 157 of Evidence Act. [read heading of refreshing memory of the literature] Both Saw Thean Tiek and this case talks about when the witness is here, you don’t talk about the report. Unless he wants to use it but not to admit it, to use it to refresh his memory or to use it to contradict him. But in Malaysia, as you can see in saw Thean Tiek, and subsequently the case of Balachandran, you can still admit it but as corroborative evidence. During the prosecution case, who is it to decide whether or not this notes is required to corroborate the witness? Is it the defence duty, or is it the proseuction duty? At this stage, it is our case. It is for the prosecution to call the witness to prove and is incumbent upon us if it is so desired. Unlike in India where it is admissible to have him produce and tender the report. I don’t think it is for the defence who can ask him to tender. In short, the notes of the examination prepared contemporaneously is not admissible as evidence and can only be used either to contradict,and or to be used to rerfresh your memonry under s.159 and s.161 Evidence Act 1950. And to some extent if it is so desireable for prosecution to tender it to form part of the prosecution’s evidence to corroborate the witness, the evidence in court. What happened if we choose not to, I mean it is my right. Then, the case of Balachandran says there’s nothing you can do. In the case of Ramasami which I referred earlier, it says too bad if the prosecution does not wish, in fact at the holding number 2 in context of Section 399 of Criminal Procedure Code which deals with admissibility of the report, if the report is served not less than 10 clear days.[read].

YA: What case?MY: PP v Ramasami, tab 13, holding no.2, page 147. [read] In Balachandran, where the first information report is normally admissible under S.108A and S.157 of the Evidence Act 1950 was not tendered by the prosecution. Then, at holding no.2 of the case, tab 14, this is what the Federal Court has to say [read]. And this doctor is one witness where the law doesn’t say he needs to be corroborated.So there is no adverse inference. And there is no problem if the prosecution does not wish to tender the document, to corroborate the maker of it. And would [] indeed if the first information report is used to contradict the evidence given by the witness, it is a duty of the defence to use it to attack the credibility of the witness. This is possible for simple reason. They are entitled as of right for the report. Because of that the report will be in their possession. But notes of the examination belongs to the same class of statement of witnesses. Defence are not entitled to it as of right. My learned friend says that “Look, I need it to cross-examine and during cross-examination I must be given all the latitude”. It is wrong. S.51 of Criminal Procedure Code must be read in the context of Section 159 Evidence Act 1950. Because the witness is ask to refresh his memory, to refer to the notes to refresh his memory. And that is what S.159 is all about, While under examination, the witness can refresh his memory. But as far as the law is concern, there are conditions to be fulfilled before he can even look at it. And that condition had been spelled out in the literature by J Augustine Paul in tab 21. The conditions is as what as the section says. And then it must be reduced at the same time of the transaction. Somebody must have read it. Even if somebody writes it, he must have read it. No.2, the witness himself apply to the court to refer to the document, not KS. The witness must apply. The witness must apply to the court to refer to the statement. And reference was made to the case of Pannerselvam that my learned friend was referred to. Then there must be a demonstrated need that the witness refer to the notes before leave is granted. Singapore case, judgement by Yong Pung Haw CJ, he says just because you ask, doesn’t mean the court will grant leave. There must be real necessity for the court to grant leave. [read case of Yuen Chun Yii v PP found in Augustin Paul’s book at tab 21, page 1125]. What did my learned friend asked is “ Do you have the history taking of the patient?” “Yes” “Do you remember the details?” “I can’t remember the details”“Do you want to see the notes?”. You must ask first what are the question you want to ask. If he can’t answer and if he stated that he need to look at the notes, then only you can ask. Not just by asking “Don’t you remember the details?”. But if you are talking about the notes of examination, he was the one who examined. “What did you examined?” he said “ the anus”. “What part of the anus?” “What else did you do?”. And he can answer that. At that point of time, where is the need to ask him to refer to the notes either made by him or somebody else. The second instance when he was asked is this “Do you have the notes?”“Yes”. “Can it be produced?”“Can you produce it?”. this is not the basis. In Paul’s book, he refers to the case and said you cannot simply allow the witness to apply and refer to it. There must be some basis. You must show that his memory has faded of it. And force him to forget certain evidence that is crucial. But we haven’t come to that. And then at page 1126 of Paul’s literature where reference was made to the case of Moomin b. Seman v PP where Richard Talalla J said “a witness cannot so refresh his memory by right”. [read]. In the event, even your Lordship ask and he cannot answer. But if merely asking him “Do you remember?”, Of course he can’t. But if you ask if he is the one who interviewed him, but he repeatedly said he did not interview but he heard it. And whether interview recorded, then you ask. But he did mentioned about the hospital and the name (of the doctor) he can’t remember, does it matter as far as he is concern? Because his duty is not to determine whether or not so and so sodomize SP1. His duty is when somebody complaints he is being sodomized, there was evidence in form of injury or anything. So it would appear that as far as the law is concern, only the witness can apply. And the court has discretion to allow or disallow it if the court is satisfied. That it is in the interest of justice to ask him to refer it. And not otherwise. It is not a matter of course. But if I may my Lord, first, the law says you can refresh your memory upon you satisfying all this condition. If is the duty of the prosecution intends to ask the witness, then the prosecution has to satisfy the condition must refresh the memory, prosecution must satisfy the condition. But after being allowed, then only under S.161 the law says the defence has the right to inspect the doc. In fact, the entitlement only arise when the application to refresh memory is allowed by the court. Only then. If I may refer to Sarkar again where it discusses on s.161, at page 2477, under the commentary of principle and scope [read]. I refer to page 2479, top page [read]. [read] Meaning only when the court says “Okay, you can refer to it”, at that point of him, the defence has a right and the right begins immediately. If it is not exercised, you cannot retain that right. then only the defence can refer and inspect the notes. We have not come to that. There is no application and ruling from the court allowing the witness to refer to the document. With regard to hunch, again my Lord, my learned friend refer to the judgement of the High Court. But we refer your Lordship to the Federal Court decision. They refer Husdi, we refer to Dato’ Mokhtar Hashim. To secure basis or foundation,I’m referring to Dato’ Mokhtar Hashim, tab 17, page 276. Just because the witness says “I cannot remember the details” when no specific questions was asked and which facts you want to know, it cannot amount to a hunch. Just because the witness says “The notes are available at the hospital” that does not amount to a hunch. Just because the witness does not want to refer to it, there is no basis for a hunch. I refer to page 276, para D to the left [read]. My learned friend have not shown or demonstrate that there are material contradiction, not contradiction, but material contradiction mainly directly affecting the issue to be indicated by the court or unexplained circumstance. We have not come to that. In fact, this premature because we have not heard the re-examination. On both S.51 and on hunch, my learned friend first has not able to show the relevancy in the sense that this evidence is legally admissible. If at all it is admissible, it talks about corroborative evidence and it is prosecution’s discretion whether or not to have the document produced. Under S.159, it talks about again it is not admissible. Because of Section 60 but can be used only for this two purpose, to refresh the memory and to contradict. Here it is not satisfied because it does not talk about admissibility. It talks about the usage for the purpose of refreshing memories or to contradict. As what Sarkar’s said. On the hunch, what is considered necessary for a hunch. There must be material contradiction. Or unexplained circumstances. Which in this case, my learned friend has not shown or illustraed what the hunch is all about. We come to P22. P22, that document was served 2 years ago. ID25, the chemist report bearing lab number -0 and -02, was served on them long time ago, 2 years ago. What was not served was the report with regard to -01. I refer to P22 and ID25. First, P22. At page 3 of the report, starting from the top most, “labroratory []” there is what the doctors says, they have collected specimens. Item 12 is for blood for alcohol and toxicology. And they talked about report being basis at the middle and making reference to the report it says “No detectable alcohor and other common drugs in the blood taken from the patient”. I’ve my reason for pointing to this. And down there stated, “Please refer to chemist report 0 and 1 for full details”. Because here they are talking about swabs from “B” specimens. So, P22 is more confined to the “B” specimens. If I can now invite your Lordship to ID25 dated 7 of July is the report that we served, but for some reason the other report, -1 is clipped with it. And that report which my learned friend is complaining about which was not served on them is dated 4th July. My learned friend complaints is this, when he cross-examinine SP2, SP2 would only knows what lab report number -1 is all about after referring to this. Actually he doesn’t have to. He was not thorough and not careful. First page of P22, the one that we served on the defence refer to it second paragraph “read Para 2 of chemist report of Dr. Seah] We know that is the toxicology report. [read Para 1 of Dr. Seah’s report] And this was this “B”s the doctors referred to. So they are referring to the first specimens, specimens “B”, there are this blood and then specimens “A”. In the first page of the chemist report. But it was with regard to specimen “B” it is this report that was referred to in P22. In fact all the doctors are questioned on those specimens “B”. Question now is whether or not the fact that the report was attached to it when it is not really before the court would it contaminate it? At this point of time, this thing has not become an exhibit. We can always take it out if don’t want. Because nobody was really examined or cross-examined on the report of 4th July. It’s all confined to this. And if so happened that the report is attached together with the this report, but is the report prejudicial? My learned friend talks about it being prejudicial. What does? The report is very neutral. It’s says nothing there. No alcohol, no drugs. What is so prejudicial about it? We have cases where a certain caution statement was admitted where the maker of the statement not only admitted the offence for which he is now detained, but other offences that are committed. The whole statement was admitted in court. But even then under S.167 of Ea, S.422 Criminal Procedure Code, S.16 and 90 of CJA, the court can just look at it and just reject all those that was wrongly admitted. And see whether or not what was admitted was strong enough to prove the case. Whether what was admitted has all the material to prove the ingredient. This is not blood or sperms cells that we are talking about. The case in point is the case of Juraimy. It is the Court of Appeal decision. Tab 18, page 578, para H. This was complained by the accused. Encik Karpal was there. [read]. Same here. We place on no reliance on the toxicology report. [continue reading page 579, para A, B and C]. Here, it does not form part of the report. It is a separate report which we can easily part. It’s admissibility does not arise at this point of time, Because we have not tender it. The maker, the author has not been called and this report will reveals nothing more than corroborative evidence again under S.159. But if I may read further, [read para D] Because we will get suspicious. But here when you look at it, there is nothing prejudicial to the report. It is neutral. It does not implicate and does not inculpate. It merely states that the no drugs and no alcohol. Because of that we are saying that just because the report was attached to it, doesn’t mean anything and even brought it does not prejudice the accused in any way. Now, coming to that we cannot be admitted, because S.51A has not been complied with to begin with that, my learned friend was not served with that report meaning we have no intention to tender it. So it was there because of the chemist report. It comes together and due to the oversight on our part and the thing it is photostated by the police, they did not actually separate the report. If later because since we are calling the author like I said just now, we may not have to rely on the report. But even if we want to rely on the data for some reason or other which I don’t foresee, Fadzil Awaluddin’s case says you can skip unless the other party []. In fact I read Archbold, in England in particular, disclosure does not stop when te trial commences. It continues throughout the trial until to the stage kit no longer acceptable for you to disclose to the other party, too late in the day, it prejudice the defence. But that is not the case. So where the prejudicial is so forceful on the right, to the need to disclose, even that in UK says this right continues. Even during the trial. It doesn’t stop. And the right should be enforce. The right to be informed of the weakening material for the prosecution or strengthening the defence. It is neither here. [] the document we want to tender. And my learned friend referred to DSAI where it says mandatory. My reply to that we must look at it and see how we can harmonize it with Fadzil Awaluddin and other case of the High Court where the court deals with the right of the accused to counsel. The right begin immediately. But the exercised of that right should take place not immediately, but later. So the obligation is yes, mandatory. We must give. But whether we must give it mandatory for the document to be supplied before the commencement of the trial or not is different. In Fadzil Awaluddin, the judge refer to what the Minister said in the Parliament when presenting the bill, [refer and read tab 19, page 754, para 19.5, 19.6, 19.7]. Having to said that the judge in this particular case said that in that particular trial, documents was served after the trial commences. The issue is non-compliance. Whether the accused is denied fair trial because of that and the judge said no. So what the judge said it is not mandatory to supply before the trial commences. He discusses when the word shall is just directory and not mandatory and in what circumstances it become directory? In DSAI’s case, it is an obiter. No.2, this issue did not arise. The court has not dealt with whether or not the obligation to supply and the time when the supply and did not discuss whether it is mandatory or directory.

YA: If it have not being served, it cannot be used.MY: S.51A…YA: Before the commencement of the trial, the court is silent.MY: I’ve been reading [] where in one sentence can mean both directory and mandatory. In fact in Ramasami the court said is the word “may” can mean both directory and mandatory.YA: []

MY: To sum up, first my learned friend is not entitled to the documents. The notes pursuant to S.51A because they’ve failed to satisfy the requirement to show relevancy in the sense to show that this is legally admissible. Saved to the extent that it can be admitted to corroborate. Which is not the case here. No.2, my learned friend is not entitled to it because he has not satisfy the requirement of S.159 and S.161 because in that situation only witness can apply. No.3, both in Ramasami and Balacahnadran, there is no document for prosecution to tender it as part of their case. And the court, less so the defence cannot compel us to do so. No.4, my learned friend has not been able to show or demonstrate that there was in fact a hunch to justify the court to look at the notes of examination before the court decide to have them supplied to the defence. They have not been able to show material contradiction or any circumstances unexplained in the evidence of SP2 to justify the court to accept or to find there is a secure basis or a foundation for a hunch. With regard to P22, I mentioned just now that the toxicology report was not served but just because attached and then referred to by the doctor, it does not contaminate. Because ultimately P22 were to be look at, the conclusion is that it is purely based on their examination, not on the laboratory examination. The conclusion in P22 only takes into account what they did themselves. It did not incorporate the conclusion and findings of the analysis made by the Chemistry Department. So, it could not be. Reference was made, yes. But the conclusion never. They only conclude based on what they give by oral evidence with regard to that, to those “B” when they made the examination they know the location where the specimens were taken from. Because of that, P22, just because it made reference when the conclusion is made is not based on those reports cannot be said contaminated. And cannot be prejudicial because there is nothing prejudical about the report. Even if it so, then the case of Juraimy is in point, S.167 actually it is more of appeal, the court is at liberty just to ignore. In fact, as we have pointed to your Lordship earlier, that particular report was never before the court. Have never been brought to the attention of the court. And no reference was made to it at all during the examination-in-chief. And for whatever conclusion the doctors made during the examination-in-chief. I pray for the application by my learned friend to be dismissed as it is made without basis and not supported by law or by the circumstances in which supported by all the cases and authorities that I’ve given. Much obliged.

KS: We want to reply because we have the right to reply. It won’t be that long.YA: Do you want a break? Panjang ke?

KS: []MY: If your Lordship can indulge me, may I just refer to this Indian case. This Indian case does not talk about …. My comment is that it merely says that before you admit

to the expert evidence you must satisfy certain condition of it. It doesn’t say if he did not satisfy certain conditions the counsel is at the liberty to force him to supply it. The court is not bound to accept it. It’s not for the defence to ensure that all [] was there. Their duty is to comment what happened with the []. This is not the case which gives the latitude to the counsel to apply for the notes of the examination. Thank you, my Lord.

KS: May we have a short break? It’s not that long.YA: Jangan lama sangat. Hari ini pagi sahaja ya.
[10.58 a.m.] Stand down.

[11.15 a.m.]KS: On the admissibility of the toxicology report, what is important is to consider whether under S.51A is there any ambiguity of this Section. S.51A is to prevent a trial from ambush. My submission is that S.51A does not reflect any ambiguity. The law is very clear. Therefore, adverting to the speech by the Minister in Parliament is of no [] and that arises if there is ambiguity. We are relying on DSAI’s case where the Federal Court said it is a mandatory obligation. And adverting to that case, the toxicology report ought to be ruled inadmissible and expunged. But more importantly, putting aside the paramount consideration in any court of law, is the requirement that all evidence ought to be placed before the court so the court will come to a just decision. There lies the duty of the prosecution, the prosecution is obliged to lay before the court all the evidence even if the evidence is against them. I refer again to the Indian case [read]. YA should really consider what the Indian case reflects. I read again. [read]. There’s nothing to stop my learned friend from in the course of examination-in-chief where the notes produce. There is no prohibition against him. It can be easily be done by my learned friend since we are prevented by the provisions if the Evidence Act 1950. It is stated only when the witness refreshes his memory, only then we are entitled to cross-examination the witness by looking at that part of the former statement. But as far as the court is concerned, YA is not limited by that provision. Otherwise it is difficult to reconcile with what is said in the Indian case. The court must be furnished and my learned friend is in a position to furnish to the court with the notes. That again will be the overall and fundamental function of the court. We know this is and adversarial trial. The judge has certain duty, has certain powers, judge has right to question witness. YA should call for the notes. Otherwise how YA to come to conclusion as to whether what the witness say here is accepted. We are dealing with expert evidence. Expert evidence is a class of its own. The court has to beguided by the evidence of the expert. It would be for YA to direct my learned friend for the notes produce for the purpose of the court coming to certain conclusion.[] The expert is supposed to assist the court. My learned friend is bringing the expert here for the purpose of assisting the court. To assist the court, we must legally bound to place that before the court.That is what the Indian case says. To furnish thee judge, not me. We can’t. It’s the prosecution. If YA would look at the Indian cases. YA could get the full report of the Indian cases. Unfortunately it is not with me now.

YA: That’s the problem. The danger of giving like this. How is the background of the case.KS: We give our undertaking to supply the full report to the court. []MY: If I may. I’m not making it further. I refer your Lordship to the case of Juraimy, tab 18, page 579, last para. I forgot to draw the attention to the last paragraph of page 579. I’m not going to read it. This is with regard to our submission to whether or not P22 is contaminated. I forgot to draw your Lordship attention to para H and I. When your Lordship seek to consider whether or not P22 should be excluded or being contaminated. The last para. Thank you, my Lord.YA: I need time to consider this issue. This case is schedule to continue on 22nd Nov. So I’ll deliver the decision on that day.KS: If I find any authority may I pass it to your Lordship and the DPP?YA: Yes. Both can pass me any authority you have just before the date of the decision.[11.24 a.m.] Adjourned.

The nomination process for the Hulu Selangor by-election started at 9am in Kuala Kubu Baharu here today and is effectively a fight between BN and PKR despite the existence of two independent candidates.
The BN’s corner has MIC information chief P. Kamalanathan, 44, as its candidate while PKR chose former minister in the prime minister’s department Datuk Zaid Ibrahim, 59.

The independent candidates are former Hulu Selangor MIC deputy chairman V. S. Chandran, 56, and businessman Johan Mohd Diah, 31.
The voter breakdown in the constituency which has 64,500 voters is 34,020 or 52.7 per cent Malays, 16,964 or 26.3 per cent Chinese, 12,453 or 19.3 per cent Indians and about 1,000 Orang Asli.
From now until the voting day on 25 April, both candidates will pit their strengths to win over voters who are mostly rural folks whose needs are simple and modest.
It would seem that the bulk of the Chinese are for Zaid but the majority of Malays and Indians are more inclined towards BN.
The problem is that Zaid may not the best person to represent the Hulu Selangor constituency as his wealth and lack of understanding of the rural psyche will be glaring. Zaid is more attuned to represent a city constituency. But since Anwar Ibrahim is in need of a successor, Zaid has been hand-picked by the PKR advisor regardless of the protest of Azmin Ali, MP for Gombak and state assemblyman for Bukit Antarabangsa.
At the end of the day, it is up to the voters to decide between the two candidates, and between BN and PKR.
I guess Bakar Arang assemblyman Tan Wei Shu, who sprang a surprise when he resigned from PKR two days ago, has the best advice.
He said “I don’t know how to brag, lie, curry favour or sweet talk. I speak the truth not like some two-faced PKR leaders. I can’t take it any longer. How do you work with such leaders? We are here not to scramble for power.”
Asked if he would become a Barisan-friendly assemblyman, he said: “I will support whoever is right, I will not support whoever is wrong. I will hold on to my promises to the people.”
“I love (Datuk Seri) Anwar Ibrahim but now that I see (Datuk Seri) Najib Tun Razak working, I’m beginning to love him. I love them both. Unlike in the past, the leader now goes down to the ground. I frankly say that I love Anwar but I want a leader who really serves the people.”
“If Najib’s leadership style is appealing to the rakyat, I will also accept him.”
Tan’s statement alone may be enough to prove who has been working and who has not. Perhaps, we should now vote for those who work.

On Sunday 24 January 2010, The Star carried a page lead headlined “Feeder buses for housing areas soon”. The story also had the photo of a grinning Ong Tee Keat with students from various races. A day earlier, The Star had a page lead titled “Ong : Not a sen lost in the deal”. The story spoke of Tee Keat who had the interest of the people at heart when the Transport Ministry terminated the deal to buy 8 diesel multiple units (DMUs) for KTM Berhad. It also had a photo of a grinning Tee Keat. The same daily also had Tee Keat expressing his anger against those who had torched the two surau.

To highlight the MCA president and Transport Minister daily is a must for The Star, especially if he is to distract public attention from the fact that he and deputy Chua Soi Lek had at 10am on October 10 had been booted out by MCA members from holding the party’s top 2 posts.

The problem since then is that Tee Keat and Soi Lek do not want to step down. And to distract the public (and MCA members) from the rightful thing for them to do – which is to relinquish their posts and allow other leaders to lead the party – they have instead gone on a crusade to be in the news as much as possible and perceived to be tackling different issues and problems.

In this age of the new media, spin doctoring in the mainstream media is no longer effective especially when The Star seems to be the only newspaper highlighting the “positives” of Tee Keat and Soi Lek when the other mainstream media have totally opposed views.

The fact is that the people, especially MCA members, are truly fed up with their antics and dishonesty. If Tee Keat and Soi Lek continue to be oblivious to the decisions of the members, there will be no respect for MCA during the 13th general election.

In fact, there is already no respect from the people for both leaders.

Picture the opposition’s election campaign banners then. One says “If Tee Keat and Soi Lek are not needed by members themselves, how can they be needed by the people?” Even worse, another banner will be carrying blurred images of a bedroom scene.

Under these circumstances, how can the BN possibly win through MCA?

So to Tee Keat and Soi Lek, please withdraw and the nation will remember you both as responsible leaders whose interests are only to safeguard the interests of the Chinese and Malaysians.

If not, the circus will continue and the both of you will be eternally remembered as clowns.

The Federal government had drawn a new economic model that will be implemented in conjunction with the 10th Malaysian Plan. Together with the various initiatives undertaken by the government, I am sure that Malaysia will emerge stronger with positive growth this year. By doing so, I am sure that the government’s fiscal deficit will be reduced.

I am pretty sure that the government’s long-term objective is not only just to recover from the economic crisis. I am glad that the Prime Minister is convinced that it is very important to take this opportunity to lay a strong foundation for the nation’s prosperity in the future with continuous renewal.

The prime minister’s vision that Malaysia uplift itself in the global economic value chain gives us some comfort that our economy will no longer be subjected to the fluctuating prices of the commodities. The idea of creating a knowledge-based economy driven by a high capacity for creativity, innovation and adding value is terrific.
Based on what was describe, the government’s long-term initiative through a new economic model which will serve as a guide for national development towards 2020 and the years beyond. While the short and medium-term initiative is the 10th Malaysia Plan. The success of these two initiatives requires the proactive role of every Malaysian. Especially, in facing difficult moments posed by economic challenges, all Malaysians have to rise to the occasion and achieved success not by coincidence but by making wise choices.
The key to our country’s success is not just our wealth in natural resources but, more importantly, our knowledgeable human capital imbued with a strong entrepreneurial spirit in generating new wealth for the nation. Thus everyone must move forward to achieve success together as there are still many paths to travel and many challenges to be faced. The people of this country are smart, talented and high-spirited. Together, we are able bring prosperity, security, good health and good fortune for Malaysia.
Although Malaysia has not fully recovered from the economic downturn, the signs indicate that we are moving out of the gloom. There is a positive gross domestic product growth from the fourth quarter of 2009. Based on our past records and achievements have given us confidence that Malaysia will not only recover from the economic crisis, but will also emerge stronger economically and more prosperous in the post-crisis era.
Taking into consideration that Malaysia had proven herself in situations as in the 1980s when commodity prices dropped sharply, and during the Asian financial storm of the late 1990s. We are confident that the government had implemented a road map towards building a stronger banking and financial sector for the country. As a result, this time, we were saved when many countries were hit hard by the economic crisis due to the failure of their banking and financial systems.
All Malaysians must be courageous and firm in effecting change and renewal for continued prosperity. We must all make sacrifice so that we are able to raise productivity, competitiveness and mastery of new skills.
All Malaysians must appreciate that the global economic crisis had compelled the government to prioritize things to bring the country back to optimal economic growth. Concrete measures, such as the economic stimulus injection of RM67 billion, tabling an additional budget, liberalizing selected sectors, creating employment, providing comfortable homes, improving public transport and restructuring subsidies. The contribution of every Malaysian is vital in ensuring success. There is no Malaysian who is not important or is marginalized. The government must recognize this fact and welcomes every talent. It will be a shameful waste if a talent that is honed under the Malaysian sky is used by other nations especially our neighboring country like Singapore.
The government had set six National Key Result Areas (NKRAs) are set. These NKRAs involve reducing crime rates, combating corruption, widening access to affordable and quality education, improving infrastructure in rural and remote areas, and upgrading public transport. As expected, the government had given the opportunity for the citizens to air their views and ideas on these NKRAs as well as identify new ones that will make Malaysia a better place to live.
In a nut shell, all Malaysians should rise to the occasion and not let little insignificant issues hinder nation building. All patriotic Malaysians should refrain from making publics statements that will enrage the general public irrespective of their race and religion. Having being a nation for half a century, Malaysians should be matured enough to handle unfavorable court decisions in the proper legal approach instead of making public statements that will further deteriorate the situation and disrupt nation building!

After a long spell of washing dirty linen in public, MCA top guns have now realised that they are not getting the support they thought they had all this while.

After the bitter war of words in recent months, they still have to settle their conflict at a “round table.” Do you think that the 21 Central Committee members will resign? Or will those who resign make way for the new election dictated by CSL and OTK? Everyone knows that both are cunning and deceiving.

Given their track records, they emerged as men with no principle and will never honor their words.

The emergency central committee meeting chaired by deputy president CSL reached an accord to postpone the imminent AGM and form a committee to evaluate issues pertaining to fresh party elections. But is there really a need for the central committee to do so when the delegates had sacked him as MCA number two?

How can OTK retain CSL as the Deputy President? Moreover the delegates had also stated clearly that they no longer needed OKT to lead the party. And OTK himself stated that if he cannot get the 2/3 mandate from the delegates, he will resign. So, how can anyone trust him if he now turns around claiming that the delegates actually needed 2/3 majority to oust him!

Sin Chew reported that the resolutions achieved at the CC meeting have allowed the party leadership to once again regain its long lost smile. Leaders of opposing factions are now able to sit together in a joint press conference, something unimaginable since the October 10 EGM.

Honestly, nobody thinks the top two MCA leaders can work with others. Or can they garner sufficient support since both had proven to be untrustworthy and conniving?

Sin Chew reported that although OTK had absented himself from the meeting through a doctor’s MC, the fact that other key leaders had sat together has at least made party members and the Chinese community in general believe that a ray of hope has indeed dawned on the current impasse. But will the Chinese community buy this?

Don’t think that they do not know that it is all just a “sandiwara semasa”.

If all these acts are genuine, there will be no more the need for UMNO to dip its hands into MCA’s affairs, and there will be no more frustration for the Chinese community, and the prolonged power struggle will very soon be resolved through to a fresh party elections.

Obviously common understanding has been achieved among the feuding factions, and although the top two leaders still disagree, more than two thirds of CC members have agreed to hold fresh polls to break the current deadlock. This shows that they have given in to the will and aspirations of members and not to allow a handful of party leaders to manipulate the party.

As reported by Sin Chew, developments following the October 10 EGM have been way beyond expectations of the general public. While OTK was recuperating on a hospital bed and was not able to chair the central committee meeting, there is a strong likelihood that even his presence then would not make a difference.

Judging from the strengths of OTK, CSL and LTL, it is apparent that the president is the underdog at this moment. His failure to chair a crucial CC meeting has been interpreted as lacking courage to face up to the occasion. In fact, no matter how hard OTK has attempted to explain, it is simply impractical for a party president who has been served with a vote of no-confidence to continue leading the party’s million-strong members. Postponing the AGM and holding fresh elections can never be decided by a handful of people. Although not every CC member accepts these resolutions, more than two thirds have made up their minds to rid the party of its chronic predicament.

Now that all three opposing factions have reached an agreement, no one should raise any objection lest more havoc be wrought upon MCA.

Looking at the current scenario, CSL seemed to be emerging as the biggest gainer in the issue. What interests the pubic is how the candidates vote in the upcoming polls. Whether LTL will seek to make greater advances through the elections to be able to serve the party more effectively since the top two are unable to do so – or the Youth and Wanita wings will also hold concurrent fresh elections – will very much dictate all their fates,.

After having suffered the full impact of the current crisis, wisdom on the part of everyone, leaders and members alike, is paramount to prevent MCA from continuing to be a laughing stock.

And as a start, the top two rejected clowns should step down gracefully and allow MCA to be rejuvenated by an honest, stronger and acceptable team. If not, the circus will never end…..

About...

It now boils down to one word – consensual. Although short, today’s trial proceedings nevertheless produced enough interest and detail to last a lifetime, or at least a political career.

The issue at hand was the difference in the charge sheet and Saiful’s testimony. The charge sheet accused Anwar of consensual sex against the order of nature, whereas his defense team argued that Saiful’s testimony spoke of non-consensual sex against the order of nature.

Their argument was so persuasive that the judge adjourned the hearing to determine whether or not to impeach the testimony of AI’s accuser.

Karpal and gang were over the moon and AI was laughing uproariously. One wonders why though? Was AI laughing too soon?

The fact is that “sex against the order of nature” is prominent in both the charge sheet and the accuser’s statements. So is the prosecution merely saying that the sex was consensual or not non-consensual as claimed by Saiful? If this is so, how does it help disprove that Anwar indulges in “sex against the order of nature”?

From sodomy to homosexuality…was Anwar laughing too soon? It’s all in the transcript. The wordings of the charge sheet and the statements are there and so are Karpal’s arguments in full. You decide – was it consensual or non-consensual.

Because obviously, you no longer have to decide if “sex against the order of nature” really took place or not.

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